Johnson v. Nguyen et al

Filing 115

ORDER - # 107 Motion is GRANTED. Clerk is directed to FILE the first amended complaint # 107 -1. AG shall file a notice by 9/8/2015 re acceptance of service obo Collet, Hagena, Osbun, and Servier and, if not, file the last known addresses under sea l for those Ds. If service not accepted, then P shall file a motion as specified. If service accepted, then answer due 21 days from date of notice accepting service. Signed by Magistrate Judge William G. Cobb on 8/25/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LAUSTEVEION JOHNSON,

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Plaintiff,
v.

ORDER
Re: Doc. # 107

A. NGUYEN, et. al.,

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3:12-cv-00538-MMD-WGC

Defendants.
Before the court is Plaintiff’s Motion for Leave to File an Amended Complaint

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(Doc. # 107)1 and proposed First Amended Complaint (Doc. # 107-1). Defendants filed a

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response (Doc. # 108) and Plaintiff filed a reply (Doc. # 111).

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I. BACKGROUND

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In Counts I, II, and IV of his original complaint, Plaintiff alleged that an officer told him

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to file a grievance because he had not received his Halal/Kosher meal. Officer Nguyen

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frequently called Plaintiff, who is Muslim, “terrorist,” and told him he would “kick [Plaintiff’s]

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ass,” and that a bomb should be dropped on Muslims. As Plaintiff walked over to get a grievance

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form, Nguyen asked Plaintiff where he was going, and Plaintiff told him he was going to get a

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grievance form. Nguyen looked at the kuffi Plaintiff was wearing and told him, “let’s go

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terrorist.” When Plaintiff advanced towards the grievance forms, Nguyen suddenly violently

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struck plaintiff on his upper back/shoulder, grabbed his left arm and shoved it behind and up his

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back and tried to ram him into a concrete wall. Nguyen then started punching Plaintiff

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repeatedly. Plaintiff alleged that Nguyen targeted him because he was a Muslim and acted in

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retaliation for Plaintiff attempting to file a grievance. Plaintiff contends he freed himself and ran

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onto the yard and laid face-down on the ground, when four Doe officers approached him and

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Refers to court’s docket number.

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repeatedly shoved their knees into Plaintiff’s back. He contends he was beaten, slammed on the

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ground and dragged for fifteen minutes and was slammed into a medical cart. Defendant

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Holliday yelled: “They should have killed you! Next time you get a grievance I’m gonna kill yo

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ass!”

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Plaintiff was transported to medical. Nguyen came to medical later and told him, “I told

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you I was gonna get you.” Later, Holliday brought him back to his cell, and violently struck him

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two or three times in the right jaw, causing him to fall, and saying: “No! I bet yo ass won’t file

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another grievance.” Plaintiff’s mouth was full of blood, he was dizzy and his jaw was swollen

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and bruised for two to three weeks. He contends Holliday targeted him because his is Muslim

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and retaliated against him for attempting to file a grievance. He avers that a Doe officer did not

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intervene when Holliday attacked Plaintiff and neither allowed him to seek medical attention.

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Plaintiff contends he sustained three lost teeth as well as neck, shoulder and back injuries from

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these attacks, along with post-traumatic stress disorder. Defendants Nash, Baca, Keast and

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Carpenter denied his grievances regarding the incident. He contends that at Ely State Prison

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(ESP), Baker, Dr. Koehn and Dr. Rivas have refused to allow him a walking cane, causing him

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to fall repeatedly and injure his knee, he cannot exercise, he has been unable to shower and has

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been forced to wash with toilet water in his cell.

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Based on these allegations, Plaintiff was allowed to proceed with the following claims:

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(1) an Eighth Amendment conditions of confinement claim against Baker, Dr. Koehn and Dr.

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Rivas; (2) Eighth Amendment excessive force claims against Nguyen and Holliday; (3) Eighth

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Amendment deliberate indifference to serious medical needs claims against Holliday, Baker,

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Dr. Koehn and Dr. Rivas; (4) Eighth Amendment supervisory liability claims against Nash,

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Baca, Keast and Carpenter; (5) retaliation claims against Nguyen and Holliday; and (6)

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Fourteenth Amendment equal protection claims against Nguyen and Holliday. (Screening Order,

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Doc. # 6 at 3-11.)

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In Counts III and V of the original complaint, Plaintiff alleged that Nguyen filed a notice

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of charges against him about the incident, and defendants Neven, Morrow, Bean and Burson

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conspired to find him guilty even though they admitted he was innocent, and retaliated against

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him for filing other civil rights lawsuits. Thereafter, Morrow held a classification hearing and

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determined Plaintiff was not at fault and ordered him released from disciplinary segregation, but

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three days later Bean informed Plaintiff that he, Morrow, Burson and Neven had met and

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determined they would not dismiss the notice of charges because Plaintiff would use that as

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evidence in a lawsuit. Based on these allegations, Plaintiff was allowed to proceed with

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Fourteenth Amendment due process claims against Neven, Morrow, Bean and Burson. (Doc. # 6

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at 11-13.)
Defendants Cox, Byrne and Bannister were dismissed from the action as Plaintiff failed

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to set forth any allegations against them. (Doc. # 6 at 13.)

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Defendants filed a motion to dismiss. Following this motion, the following claims

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remain: (1) the Eighth Amendment conditions of confinement claim regarding not being able to

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exercise or shower, and being forced to bathe in toilet water at ESP against Baker, Dr. Koehn

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and Dr. Rivas; (2) the Eighth Amendment excessive force claim against Holliday; (3) the

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retaliation claim against Holliday; (4) the equal protection claim against Holliday; (5) the Eighth

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Amendment deliberate indifference to medical needs claim against Holliday; (6) the Eighth

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Amendment deliberate indifference claim against Baker, Dr. Koehn and Dr. Rivas;

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(7) the supervisory liability claims against Nash, Baca, Keast and Carpenter, to the extent based

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on the above-referenced allegations; and (8) the Fourteenth Amendment due process claims

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against Neven, Morrow, Bean and Burson. (See Docs. # 92, # 95.)
The court entered a scheduling order on April 22, 2015, requiring an amendment to a

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pleading or the joinder of parties to be completed by June 21, 2015. (Doc. # 100.)
On June 26, 2015, Plaintiff filed a first amended complaint (itself dated June 6, 2015)

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without an accompanying motion for leave to amend. (Doc. # 105.) The court dismissed the first

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amended complaint without prejudice for failure to comply with Local Rule 15-1. (Doc. # 106.)
On July 24, 2015, Plaintiff filed the instant motion for leave to amend (Doc. # 107) and

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proposed first amended complaint (Doc. # 107-1).

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II. SUMMARY OF BRIEFING

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In his motion, Plaintiff points out that his original complaint described three events where

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he was assaulted on January 1, 2012: (a) one involving Officer Nguyen; (b) one involving the

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Doe officers; and (c) one involving Officer Holliday (and the Doe defendant who allegedly

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observed the assault and failed to intervene). (Doc. # 107 at 1.) He acknowledges that his

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excessive force claim against Officer Nguyen has been dismissed; but Plaintiff now knows the

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identity of the Doe officers involved in the second (Collett, Hagena and Osbun) and third

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(Officer Sevier) alleged assault events. (Id.) He notes that his motions to conduct early discovery

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to ascertain the identities of these individuals were denied, and he only obtained their names

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when he was subsequently allowed to conduct discovery. (Id.)

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Defendants argue that the deadline to amend the complaint or add parties was June 21,

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2015. (Doc. # 108.) Plaintiff filed an amended complaint without an accompanying motion on

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June 26, 2015, and then filed this motion with the new proposed first amended complaint on

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July 24, 2015, and Plaintiff failed to seek enlargement of the deadline to file the motion.

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Defendants contend that permitting an amendment at this time would prejudice them and would

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create undue delay, especially considering the August 19, 2015 dispositive motions deadline.2

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Defendants also assert that in their January 26, 2012 response to a motion for preliminary

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injunction filed in another case, Plaintiff was provided with an “Offense in Custody Report”

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which noted Officer Collett’s involvement in the January 1, 2012 incident. (Doc. # 108 at 3,

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citing Case 2:11-cv-00484-JCM-CWH, Doc. # 16-14.) In addition, on May of 2015, Plaintiff

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propounded interrogatories asking for the names of the officers who restrained him, and those

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responses were served on June 1, 2015, identifying Officers Collett, Hagena, Osbun and Sevier.

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(Doc. # 108 at 3.) Plaintiff was provided with the incident report again on June 1, 2015. (Id.)

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Defendants also point out that Plaintiff’s proposed amended complaint names dismissed

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defendants Nguyen and Cox. Plaintiff also includes additional allegations against Morrow,

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against whom the court only allowed Plaintiff to proceed with a single due process claim.

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The court has since stayed the dispositive motion filing deadline while the instant motion for leave to
amend is pending. (Doc. # 113.)

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Defendants contend that permitting Plaintiff to amend at this point would result in further delays

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required in locating the new defendants and investigating their defense. (Doc. # 108 at 4.)

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In his reply brief, Plaintiff asserts that he tried to conduct discovery prior to the filing of

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dispositive motions, but his requests to do so were denied, and his amendment was only five

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days late. (Doc. # 111 at 1.) He attributes his tardiness to the HDSP mail scale being out of

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batteries which resulted in his mail not being weighed and sent on time. (Id.) He further contends

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that any delays in the case are a result of defendants opposing his motion to conduct discovery in

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the first place. (Id.) He asserts that good cause exists to allow the amendment because it would

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result in his case being heard on the merits. (Id.) With respect to defendant Cox, Plaintiff

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contends that he was not dismissed with prejudice.
III. DISCUSSION
"A party may amend its pleading once as a matter of course within: (A) 21 days after

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serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after

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service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),

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whichever is earlier." Fed. R. Civ. P. 15(a)(1)(A), (B). Otherwise, a party must seek the opposing

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party's written consent or leave of court to amend a pleading. Fed. R. Civ. P. 15(a)(2). Here,

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Plaintiff was required to seek leave to amend his complaint.

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While the court should give leave to amend freely when justice requires, leave need not

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be granted where amendment: "(1) prejudices the opposing party; (2) is sought in bad faith; (3)

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produces an undue delay in litigation; or (4) is futile." Amerisource Bergen Corp. v. Dialysist

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West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation omitted).

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Where, as here, a motion for leave to amend is filed after entry of a Rule 16 scheduling

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order, the movant cannot “appeal to the liberal amendment procedures afforded by Rule 15.”

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AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 952 (9th Cir. 2006). Instead, the

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movant must “satisfy the more stringent ‘good cause’ showing required under Rule 16.” Id.

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(emphasis original). Federal Rule of Civil Procedure Rule 16(b)(4) expressly states that “[a]

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schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P.

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16(b)(4). “The district court is given broad discretion in supervising the pretrial phase of

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litigation, and its decisions regarding the preclusive effect of a pretrial order ... will not be

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disturbed unless they evidence a clear abuse of discretion.” C.F. ex rel. Farnan v. Capistrano

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Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011), cert. denied., 132 S.Ct. 1566 (2012). “A

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court’s evaluation of good cause is not coextensive with an inquiry into the propriety of the

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amendment under ... Rule 15.” Johnson v. Mammoth Recreations, Inc., 975 F.3d 604, 609 (9th

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Cir. 1992) (citation and internal quotation marks omitted) (emphasis added). “Unlike Rule

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15(a)’s liberal amendment policy which focuses on the bad faith of the party seeking to interpose

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an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard

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primarily considers the diligence of the party seeking amendment.” Id. In other words, “’[t]he

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focus of the inquiry is upon the moving party’s reasons for seeking modification.’” Farnan, 654

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F.3d at 984 (quoting Johnson, 975 F.2d at 609). “[C]arelessness is not compatible with a finding

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of diligence and offers no reason for a grant of relief.” Johnson, 975 F.2d at 609.

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Here, the deadline for filing an amended pleading and for adding parties was set by the

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scheduling order as June 21, 2015. (Doc. # 100.) When Plaintiff originally filed his amended

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complaint, without the accompanying motion for leave to amend, it was dated June 6, 2015, but

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was not filed with the court until June 26, 2015. (Doc. # 105.) As stated, supra, the court

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dismissed this amended complaint because it was not accompanied by a motion for leave to

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amend. (Doc. # 106.) Plaintiff then filed the motion for leave to amend and proposed amended

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complaint on July 24, 2015. (Doc. # 107, Doc. # 107-1.) The motion did not explain the

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untimeliness of the amended complaint. Nevertheless, Plaintiff’s reply brief asserts that the

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reason the document was late when he originally attempted to file it was due to issues with the

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mailing equipment at the prison, which were beyond Plaintiff’s control. While Plaintiff did not

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submit a declaration to that effect, his statement is credible given the date of his original

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amended complaint (June 6, 2015) and the filing date of the amended complaint (June 26, 2015).

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Plaintiff should have explained these circumstances in his initial filing and included a motion for

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leave to amend and extend the scheduling order deadline; however, the court will consider his

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explanation, while tardy itself, as good cause for extending the deadline to add parties or file an

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amended complaint.

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Defendants argue that Plaintiff should have filed this motion before the June 21, 2015

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deadline because he was in possession of information justifying the amendment well before this

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point. First, they refer to Doc. # 16-14 in case 2:11-cv-00484-JCM-CWH, arguing that this put

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Plaintiff on notice of Officer Collett’s involvement in the January 1, 2012 incident. This

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document is a notice of charges from the January 1, 2012 incident. The “report of violation”

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section of the notice of charges gives Officer Nguyen’s description of the January 1, 2012 event,

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and states that “several officers” came to assist him in restraining Plaintiff. This document does

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not refer to Officer Collett as Defendants suggest, and does not provide any of the other names

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Plaintiff now seeks to substitute into this case for the Doe defendants.

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Plaintiff is correct that the court denied his request to initiate discovery prior to the

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disposition of Defendants’ motion to dismiss, after it solicited briefing and held hearings and

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determined he did not need to conduct discovery to respond to that motion. (See Docs. # 30,

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# 37, # 38, # 39, # 40, # 49.) Defendants assert that they provided the identity of these

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individuals with their discovery responses, which were served on June 1, 2015. This is

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consistent, however, with the date of Plaintiff’s initial first amended complaint (June 6, 2015),

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which does not show Plaintiff was being dilatory in seeking amendment after he received this

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information.

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Defendants’ argument that they will be prejudiced if Plaintiff is allowed to amend to add

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these parties at this juncture is not well taken, particularly in light of the fact that these incidents

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occurred on the same day and it appears that Defendants have been in possession of

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documentation concerning the incidents for some time.

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For these reasons, the court will allow Plaintiff leave to amend his complaint.

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Specifically, Plaintiff is granted leave to amend his complaint to substitute defendants Collett,

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Hagena and Osbun for the Doe defendants previously named with respect to the second alleged

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Eighth Amendment excessive force incident on January 1, 2012. He is also permitted to amend

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his complaint to substitute defendant Sevier in for the Doe defendant previously named as having

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witnessed defendant Holliday beat Plaintiff without intervening (Eighth Amendment failure to

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protect) and in failing to provide Plaintiff with medical care after this event (Eighth Amendment

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deliberate indifference to serious medical need). The court will now address Defendants’

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contentions that the first amended complaint improperly includes defendants that were

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previously dismissed and allegations different from those allowed to proceed on screening of the

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original complaint.

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Defendants are correct that the caption erroneously references defendant Nguyen and

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James Cox, who were dismissed from this action. (Doc. # 107-1.) They will remain dismissed

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from this action. To the extent Plaintiff asserts new allegations against Cox, he would have been

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in possession of this information long ago, and was dilatory in seeking to add these allegations as

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to Cox. Therefore, he is not permitted to proceed with new claims against Cox.

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Nor is Plaintiff permitted to amend his allegations as to defendant Morrow as he would

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have been in possession of the information giving rise to the new allegations contained in the

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amended complaint (Doc. # 107-1 at 8, 9) long ago. Therefore, Plaintiff may only proceed with

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the Fourteenth Amendment due process claim against Morrow per the initial screening order.

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In sum, Plaintiff may proceed with the claims identified in the screening order that

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survived Defendants motion to dismiss, as set forth above. He is granted leave to amend to assert

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an Eighth Amendment excessive force claim against Collett, Hagena and Osbun, as well as

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Eighth Amendment failure to protect and deliberate indifference to serious medical care claims

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against Sevier. Defendants will not be prejudiced by this amendment as these allegations were

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contained within the original complaint all along and the incidents that are the subject of these

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allegations were well known to Defendants.
IV. CONCLUSION

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Plaintiff’s motion for leave to amend (Doc. # 107) is GRANTED as set forth in this

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Order. The Clerk is directed to FILE the first amended complaint (Doc. # 107-1) and it will

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proceed as noted herein. The Attorney General’s Office should file a notice within fourteen days

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of the date of this order indicating whether they will accept service on behalf of Collet, Hagena,

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Osbun, and Servier and, if not, file the last known addresses under seal for those defendants for

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whom they will not accept service.

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If service cannot be accepted for any of these defendants, Plaintiff shall file a motion

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within fourteen days of the date the Attorney General’s Office files a document indicating they

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do not accept service on behalf of a particular defendant, identifying the unserved defendant(s),

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and requesting issuance of a summons for the specified defendant(s).

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If the Attorney General’s Office accepts service of process for any named defendant, they

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shall file and serve an answer or other response within twenty-one days of the date it files its

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notice accepting service on behalf of the above-referenced defendants.

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IT IS SO ORDERED.

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Dated: August 25, 2015.

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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