Hendrix v. State of Nevada et al

Filing 154

ORDER denying 144 Motion; REPORT AND RECOMMENDATION Recommending to deny 146 Motion for Leave to File Document. Objections to R&R due by 2/27/2019. Signed by Magistrate Judge Carl W. Hoffman on 2/13/2019. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMAL DAMON HENDRIX,

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Plaintiff,
REPORT AND RECOMMENDATION

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Case No. 2:13-cv-01527-JAD-CWH

v.
STATE OF NEVADA, et al.,

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Defendants.

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Presently before the court is plaintiff Jamal Damon Hendrix’s motion to engage in full

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discovery (ECF No. 144), filed on August 8, 2018. Defendants Rebecca Kelly, Darren O’Barr,

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and Lyle Rohan filed a response (ECF No. 145) on August 13, 2018. Plaintiff filed a reply (ECF

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No. 152) on September 17, 2018.
Also before the court is plaintiff’s motion for leave to file a second amended complaint

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(ECF No. 146), filed on August 17, 2018. Defendants filed a response (ECF No. 149) on August

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31, 2018. Plaintiff filed a reply (ECF No. 153) on September 19, 2018.

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I.

BACKGROUND

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This is a prisoner’s civil rights action pursuant to 42 U.S.C. § 1983 where plaintiff alleges

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that defendants violated his Eighth Amendment and Fourteenth Amendment rights while detained

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at the Clark County Detention Center. (Am. Compl. (ECF No. 71).) On June 20, 2016, this court

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granted defendants motion for judgment on the pleadings and entered judgment in favor of the

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defendants. (Order (ECF No. 118); Judgment (ECF No. 119).) Plaintiff appealed, and the Ninth

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Circuit reversed, vacating the order that granted the motion for judgment on the pleadings.

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(Mem. of USCA (ECF No. 124).) This court then denied defendants’ motion for judgment on the

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pleadings and reopened this case. (Order (ECF No. 135).)

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On March 13, 2018, defendants filed a proposed discovery plan and scheduling order,

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requesting 180 days to conduct discovery. (Proposed Discovery Plan (ECF No. 136).)

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Defendants stated that the proposed discovery plan was mailed to plaintiff and that the

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accompanying letter stated that the plan would be submitted to the court if plaintiff did not

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respond. (Id.) The court then entered a scheduling order, providing June 12, 2018, as the

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discovery deadline and May 14, 2018 as the deadline to amend the pleadings. (Scheduling Order

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(ECF No. 137).)
Plaintiff now moves to reset all discovery dates in the scheduling order, almost two

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months after the close of discovery. (Mot. to Engage in Full Discovery (ECF No. 144).)

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Defendants respond that plaintiff failed to demonstrate good cause and excusable neglect. (Resp.

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(ECF No. 147).) Plaintiff replies that he did not receive the court’s scheduling order and that the

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District Judge should admonish the clerk for failing to provide plaintiff with the court’s order.

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(Reply (ECF No. 152).)
Plaintiff also moves for leave to file a second amended complaint, adding five additional

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defendants and allegations. (Mot. for Leave (ECF No. 146).) Defendants respond that plaintiff’s

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motion is untimely and that the proposed amendments are futile. (Resp. (ECF No. 149).)

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Plaintiff replies that a request to amend the complaint was sent to opposing counsel on July 18,

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2018, and that his request went unanswered. (Reply (ECF No. 153).) Plaintiff further argues that

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the amended complaint seeks to identify “Doe defendants” whose identities were previously

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unknown.

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II.

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MOTION TO ENGAGE IN FULL DISCOVERY
Plaintiff moves the court to reset all discovery dates in its scheduling order to allow

defendant to engage in discovery. Under Local Rule 26-4
[a] motion or stipulation to extend any date set by the discovery plan, scheduling
order, or other order must, in addition to satisfying the requirements of LR IA 6-1,
be supported by a showing of good cause for the extension. A motion or
stipulation to extend a deadline set forth in a discovery plan must be received by
the court no later than 21 days before the expiration of the subject deadline. A
request made within 21 days of the subject deadline must be supported by a
showing of good cause. A request made after the expiration of the subject
deadline will not be granted unless the movant also demonstrates that the failure
to act was the result of excusable neglect.

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The good cause standard under LR 26-4 is the same as that for modification of the scheduling

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order under Federal Rule of Civil Procedure 16(b). As stated in Johnson v. Mammoth

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Recreations, Inc., the good cause standard primarily considers the diligence of the party or parties

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seeking the extension. 975 F.2d 604, 609 (9th Cir. 1992).

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In addition to a showing of good cause, a request made after the expiration of a deadline

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must be accompanied by a showing of excusable neglect. See LR 26-4. In evaluating excusable

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neglect, the court considers the following factors: “(1) the danger of prejudice to the opposing

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party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the

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delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal Service, 231 F.3d

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1220, 23–24 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380,

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395 (1993)).

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Plaintiff moves to extend discovery deadlines almost two months after the close of

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discovery. Plaintiff requests that the court not rule on defendants’ pending motion for summary

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judgement until he receives the names of nurses, grievances referencing his broken arm, and

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relevant videotapes. Defendants argue that plaintiff has failed to demonstrate good cause or

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excusable neglect in making this request, and that the requested discovery materials do not pertain

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to the motion for summary judgment. In his reply, plaintiff argues that he was unaware of the

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court’s March 14, 2018 scheduling order. Plaintiff also requests the court to admonish the clerk’s

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office for allegedly failing to provide plaintiff with a copy of its scheduling order.

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The court finds that the motion to amend the scheduling order is untimely and fails to

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demonstrate good cause and excusable neglect. Plaintiff filed this motion two months after the

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close of discovery and a month following defendants’ dispositive motion. An extension of all

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discovery deadlines would severely prejudice defendants, as it would require reopening

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discovery. Further, plaintiff waited almost a month after the filing of defendants’ motion for

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summary judgment to request an extension of all discovery dates. Granting plaintiff’s request

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would severely delay these proceedings. The court is not persuaded by plaintiff’s reason for the

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delay. Plaintiff does not explain why he could not have obtained the identities of the nurses

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through engaging in the discovery process at any point in the litigation. Further, plaintiff failed to
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propound any discovery requests to defendants during the discovery phase, which may have

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eliminated this issue.

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Lastly, while plaintiff argues that he did not receive the court’s scheduling order, plaintiff

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was aware that a scheduling order would be entered, and thus, he is not relieved from the duty of

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proactively litigating his case. 1 At any point, plaintiff could have requested a copy of the docket

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to determine if the court entered a scheduling order. Additionally, plaintiff should be aware of

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the court’s procedure in entering a discovery plan and scheduling order, because the court entered

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such an order prior to the Ninth Circut appeal in this case. (See Scheduling Order (ECF No. 70).)

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The court therefore finds that plaintiff has not demonstrated excusable neglect nor good cause,

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and will deny his motion to extend the discovery deadlines.

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III.

MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
As a general rule, “a party may amend its pleadings once as a matter of course” within

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twenty-one days of service, or within twenty-one days after service of a responsive pleading or

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motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, a party must obtain the

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opposing party’s consent or leave of the court. Fed. R. Civ. P. 15(a)(2). The court has broad

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discretion to grant or deny leave to amend, but should grant leave when “justice so requires.” Id.;

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see also Mir v. Fosburg, 646 F.3d 342, 347 (9th Cir. 1980). The court may consider “bad faith,

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undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has

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previously amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th

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Cir. 2011).
However, once the court issues a pretrial scheduling order pursuant to Rule 16 of the

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Federal Rules of Civil Procedure, the court must first apply the governing “good cause” standard.

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See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-608 (9th Cir. 1992). The good

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cause standard “primarily considers the diligence of the party seeking the amendment.” Id. In

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addition, the carelessness of the party “is not compatible with a finding of diligence and offers no

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Defendants mailed a copy of their proposed discovery plan and scheduling order to plaintiff on February
26, 2018, and plaintiff is aware that a proposed discovery was indeed filed with the court. (See Proposed
Disc. Plan (ECF No. 136); see also Resp. (ECF No. 153) at 2.)

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reason for a grant of relief.” Id. at 609. As stated in the section above, a request made to modify

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the pretrial scheduling order after the expiration of a deadline must be accompanied by a showing

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of excusable neglect. See LR 26-4. The court considers the following factors when evaluating

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excusable neglect: (1) the danger of prejudice to the non-moving party; (2) the length of the delay

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and the impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted

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in good faith. See Bateman v. U.S. Postal Service, 231 F.3d 1220, 23–24 (9th Cir. 2000) (citing

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Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993)).

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In Johnson, the Ninth Circuit applied Rule 16’s good cause standard when the plaintiff

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moved to amend his complaint to add an additional party, rather than making a specific request to

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amend the scheduling order. See 975 F.2d at 608-09. There, the court held that plaintiff had not

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demonstrated good cause when he failed to heed signs that not all parties were named in the

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action. Id. at 609. Further, the court noted that plaintiff held the burden to properly prosecute his

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case, and his failure to pay attention to the discovery responses is the same type of case

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management issue Rule 16 seeks to cure. Id. at 610.

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Though plaintiff has not specifically requested a modification of the scheduling order, a

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motion to amend the pleadings after the court-ordered deadline is a de facto request to modify the

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scheduling order. See Johnson, 975 F.2d at 608-09. Given that the scheduling order provided

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May 14, 2018 as the deadline to amend the pleadings and that plaintiff moved to amend the

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complaint after the deadline, the court will evaluate plaintiff’s motion according to the excusable

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neglect standard under the Local Rules. See LR 26-4.

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Having reviewed plaintiff’s motion to amend, the court finds that plaintiff has failed to

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demonstrate excusable neglect. Amending the complaint at this stage in the proceedings severely

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prejudices defendants, as the motion to amend was filed almost a month following the filing of

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defendants’ motion for summary judgment. Additionally, amending the complaint will

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significantly delay the proceedings, virtually restart the discovery process, and force defendants

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to conduct discovery on plaintiff’s new allegations and additional defendants. While plaintiff does

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indeed identify the previously unknown Doe defendants, the court is not persuaded by plaintiff’s

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reasons for the delay, which he attributes to defendants’ failure to respond to his July 27, 2018
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letter requesting leave to amend. Whether or not defendants responded to plaintiff’s letter does

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not excuse this untimely motion. The court will therefore recommend that the motion for leave to

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file a second amended complaint be denied.

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IV.

IT IS THEREFORE ORDERED that plaintiff’s motion to engage in full discovery (ECF

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ORDER AND RECOMMENDATION

No. 144) is DENIED.
IT IS FURTHER RECOMMENDED that plaintiff’s motion for leave to file a second

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amended complaint (ECF No. 146) be DENIED.

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V.

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NOTICE
This report and recommendation is submitted to the United States district judge assigned

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to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation

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may file a written objection supported by points and authorities within fourteen days of being

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served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely

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objection may waive the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991).

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DATED: February 13, 2019

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C.W. HOFFMAN, JR.
UNITED STATES MAGISTRATE JUDGE

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