White v. Baca et al

Filing 48

ORDER - (1) Plaintiff's motion for leave to amend (ECF No. 36 ) is GRANTED : (2) The Clerk shall FILE the second amended complaint (ECF No. 36 -1); (3) Plaintiff may proceed with the following claims: Eighth Amendm ent deliberate indifference to serious medical need against Dr. Aranas, Brumfield, Boni, Geer, Council and Wyatt in Count I; and, State law claims based on Nevada Revised Statute 209.381 against Brumfield, Geer, Council and Wyatt in Count II; ( 4) The State of Nevada is immune from suit; (5) Within 14 days of the date of this Order, AG shall file notice re acceptance of service obo Boni, Geer, Council and Wyatt; and file address(es) under seal if service not accepted; (6) If service accepted, than answer/response due 21 days of filing of notice of acceptance; (7) Motions (ECF No. 40 , 41 ) are DENIED WITHOUT PREJUDICE . The current scheduling order deadlines are VACATED . Signed by Magistrate Judge William G. Cobb on 8/30/2017. (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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HOWARD LEE WHITE,
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Plaintiff,
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vs.
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ISIDRO BACA, et al.,
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Defendants.
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______________________________________)

3:15-cv-00573-MMD-WGC
ORDER
Re: ECF No. 36

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Before the court is Plaintiff’s Motion for Leave of Court to File Second Amended and Supplement
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Complaint and Adding Defendants. (ECF No. 36; Proposed Second Amended Complaint at ECF No.
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36-1.) Defendants filed a response (ECF No. 38), and Plaintiff filed a reply (ECF No. 39).
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I. BACKGROUND
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Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC),
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proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Pl.’s Am. Compl., ECF No. 7.) The
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events giving rise to this action took place while Plaintiff was housed at Northern Nevada Correctional
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Center (NNCC). (Id.) The defendants named in the amended complaint are Jayson Brumfield and
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Dr. Romeo Aranas.
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On screening, Plaintiff was allowed to proceed with an Eighth Amendment deliberate
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indifference to serious medical needs claim based on allegations that he is diabetic and was ordered a
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2000 calorie medical diet and snack, but has never been provided with the meal, and has been served
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meals too high in sugar, starch and carbohydrates, which endanger his life. (Screening Order, ECF No.
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10.) He was also allowed to proceed with a supplemental State law claim under Nevada Revised Statute
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209.381 against Brumfield for allegedly being negligent in his duties as food service manager. (Id.)

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After efforts to mediate this matter were unsuccessful (ECF No. 15), service was accepted on

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behalf of Defendants and they filed their answer on March 3, 2017. (ECF No. 20.) The court issued a

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scheduling order on March 6, 2017, requiring any pleading joining parties, or a motion for leave to

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amend to be filed by May 5, 2017. (ECF No. 21.)

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On May 16, 2017, Plaintiff filed a motion to extend the discovery deadline (which was scheduled

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to close on June 5, 2017). (ECF No. 27.) In that motion, he stated he had received Brumfield’s discovery

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responses on May 12, 2017, and he deemed them incomplete or evasive. (Id.) He indicated he needed

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additional time to discover the identity of the present dietician, and serve written interrogatories on or

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depose non-defendants food service cooks Thomas Wyatt, Richard Geer, dietician Mary Agnes Boni,

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food service manager John Ramos and NDOC Director James Dzurenda. (Id.) The court granted the

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motion and extended the discovery cutoff until July 6, 2017. (ECF No. 28.) The dispositive motion

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deadline was extended to August 7, 2017. (ECF No. 34.)

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On June 29, 2017, Plaintiff filed a motion seeking leave of court to amend his complaint.

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(ECF No. 36.) The proposed second amended complaint adds as defendants: Mary Agnes Boni (licensed

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dietician), Richard Geer (food services cook supervisor 3), Jacob Council (food services cook supervisor

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3), Thomas Wyatt (food services cook supervisor 3), and the State of Nevada. (ECF No. 36-1 at 2-4.)

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The motion asserts that Brumfield identified Mary Agnes Boni as the prior licensed dietician in

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discovery. (Id. at 2.) He states that the additional defendants “participated in furthering the practice that

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obviated the physician ordered 2000 calorie medical diet, from being carried out.” (Id.)

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In Count I of the proposed second amended complaint, like the first amended complaint, Plaintiff

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alleges that he was diagnosed with diabetes in 2003, transferred to NNCC in 2008, and was ordered a

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2000 calorie medical diet with a “H.S. snack” by his medical provider. He contends, as he did

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previously, that he was never provided with the 2000 calorie medical diet, and instead was served the

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same meals as those served to the general population, which he contends are high in sugar, starch and

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carbohydrates and threaten his health. He avers that Dr. Aranas responded to his second level grievance

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by agreeing with the first level response that had advised him that meals coming out of the culinary are

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watched over by the “free staff” in that area, and the staff have guidelines to follow for cooking and

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serving food. He claims that Brumfield identified (presumably in discovery) “free staff” as the food
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service cooks Wyatt, Council and Geer. He goes on to state that Geer, “also known as ‘Jayson,’” when

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serving diabetic food trays stated: “well, no they are all the same.” (ECF No. 36-1 at 6.) He goes on to

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recount the items served for meals on June 22, 2017. (ECF No. 36-1 at 6.)

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He asserts that on May 12, 2017, Brumfield identified Mary Agnes Boni as the prior licensed

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dietician, stating he did not know the identity of the recent licensed dietician. (ECF No. 36-1 at 7.) He

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alleges that he was informed by a nurse that the dietician position was eliminated by the legislature, but

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diets were reviewed by a state health dietician on an as-needed basis. (ECF No. 36-1 at 7.) He also states

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that Administrative Regulation 269, effective March 7, 2017, was produced to him in discovery, and

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provides that medical diets will be developed and reviewed by a licensed dietician. (Id.)

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In Count II, Plaintiff alleges that Brumfield, Geer, Council and Wyatt breached their duty of

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ensuring the proper preparation and distribution of his medically prescribed diet in violation of Nevada

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Revised Statute 209.381. (ECF No. 36-1 at 9.) He claims that when he informed Brumfield he was not

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receiving the diet, Brumfield said it was too much of a hassle to prepare separate meals for 1400 inmates.

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(Id.)

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In their response to Plaintiff’s motion for leave to amend, Defendants argue that Plaintiff failed

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to file his motion by the scheduling order deadline of May 5, 2017, and did not comply with Local Rule

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15-1 by attaching the proposed amended complaint. (ECF No. 38.)

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In his reply brief, Plaintiff notes the scheduling order deadline, but says that under Rule 15(c)(2),

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a claim asserted in an amended complaint relates back if it arose out of the conduct, transaction or

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occurrence set forth in the original complaint. (ECF No. 39.) Insofar as Local Rule 15-1 is concerned,

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Plaintiff states that on June 29, 2017, he handed the law library supervisor his motion and proposed

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amended complaint to be filed. (Id. at 2-3.)

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II. DISCUSSION

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“A party may amend its pleading once as a matter of course within: (A) 21 days after serving it,

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

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

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earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B). Otherwise, a party must seek the opposing party’s written

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consent or leave of court to amend a pleading. Fed. R. Civ. P. 15(a)(2). Here, Plaintiff was required to
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seek leave to amend.

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Insofar as Defendants argue that Plaintiff failed to comply with Local Rule 15-1’s requirement

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that the proposed amended complaint be filed along with the motion for leave to amend, the court’s

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docket reflects that the proposed second amended complaint was submitted with the motion. (See ECF

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Nos. 336, 6-1.)

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The court will now turn to whether Plaintiff should be granted leave to amend even though he filed
his motion after the scheduling order deadline.

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The scheduling order issued on March 6, 2017, requiring any pleading adding parties or a motion

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for leave to amend be filed by May 5, 2017. (ECF No. 21.) Plaintiff filed his motion for leave to amend

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on June 29, 2017, more than a month after the scheduling order deadline.

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Where a motion for leave to amend is filed after entry of the Rule 16 scheduling order deadline,

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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 movant

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must “satisfy the more stringent ‘good cause’ showing required under Rule 16.” Id. (emphasis original).

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Rule 16 expressly states that “[a] schedule may be modified only for good cause and with the judge’s

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consent.” Fed. R. Civ. P. 16(b)(4). “The district court is given broad discretion in supervising the pretrial

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phase of 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 Unified

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

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

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amendment … Rule 15.” Johnson v. Mammoth Recreations, Inc., 975 F.3d 604, 609 (9th Cir. 1992)

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(citation and quotation marks omitted) (emphasis added). “Unlike Rule 15(a)’s liberal amendment policy

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…, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking

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amendment.” Id. In other words, “‘[t]he focus of the inquiry is upon the moving party’s reasons for

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seeking modification.’” Farnan, 654 F.3d at 984 (quoting Johnson, 975 F.3d at 609). “[C]arelessness

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is not compatible with a finding of diligence and offers no reason for a grant of relief.” Johnson, 975

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F.2d at 609.

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It appears that Plaintiff did not file his motion until after the scheduling order deadline because

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he did not discover the identity of these defendants until they were disclosed in Brumfield’s discovery

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responses, which Plaintiff received after May 5, 2017. Therefore, the court finds that good cause exists

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to permit amendment beyond the scheduling order deadline. Defendants do not argue that amendment

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was sought in bad faith, would result in prejudice or undue delay or is futile. See Amerisource, 465 F.3d

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at 951. As such, Plaintiff’s motion is granted, except that Plaintiff may not proceed against the State of

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Nevada, as it is immune from suit. U.S. Const. amend. XI.

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IV. CONCLUSION
(1) Plaintiff’s motion for leave to amend (ECF No. 36) is GRANTED;

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(2) The Clerk shall FILE the second amended complaint (ECF No. 36-1);

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(3) Plaintiff may proceed with the following claims: Eighth Amendment deliberate indifference

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to serious medical need against Dr. Aranas, Brumfield, Boni, Geer, Council and Wyatt in Count I; and,

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State law claims based on Nevada Revised Statute 209.381 against Brumfield, Geer, Council and Wyatt

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in Count II.

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(4) The State of Nevada is immune from suit;

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(5) Within FOURTEEN (14) DAYS of the date of this Order, the Attorney General’s Office

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shall file a notice advising the court whether it will accept service on behalf of Boni, Geer, Council and

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Wyatt. If it does not accept service for any of those defendants, it shall file their last known address

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under seal (and not serve the inmate plaintiff). If the last known address is a post office box, the Attorney

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General’s Office shall attempt to obtain and provide the last known physical address(es). If service is

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not accepted for any of the new defendants, Plaintiff shall file a motion identifying the unserved

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defendant(s) and requesting issuance of a summons and service of the summons and complaint.

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(6) For those defendants on whose behalf the Attorney General has accepted service, the

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defendants shall file and serve an answer or other responsive pleading within TWENTY-ONE days of

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the date a notice of acceptance of service is filed.

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(7) The pending motion for summary judgment of Defendants Brumfield and Dr. Aranas

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(ECF No. 40) and corresponding motion for leave to file documents under seal (ECF No. 41), which no

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longer address the operative complaint are DENIED WITHOUT PREJUDICE. The current scheduling
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order deadlines are VACATED. Once a responsive pleading is filed as to the second amended

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complaint, the court will issue a new scheduling order setting forth case management deadlines,

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including a new dispositive motion deadline, or set a status conference, if necessary.

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IT IS SO ORDERED.

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DATED: August 30, 2017.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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