Walker v. Miller et al

Filing 109

ORDER that ECF No. 104 Plaintiff's Second Motion to Amend Complaint is GRANTED; Clerk directed to file (ECF No. 104 at 3-26) Second Amended Complaint; Plaintiff may proceed with the claims and defendants asserted in SAC; AG directed t o advise Court by 2/9/2018 re acceptance of service; Answer/response due within 21 days of acceptance of service for any defendants represented; and the current discovery and dispositive motion deadlines are VACATED. Signed by Magistrate Judge William G. Cobb on 1/26/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN WALKER,
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Plaintiff,
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vs.
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WILLIAM MILLER, et al.,
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Defendants.
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______________________________________)

3:15-cv-00608-MMD-WGC
ORDER
Re: ECF No. 104

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Before the court is Plaintiff’s Motion to Amend (2nd Amend.) Civil Rights Complaint and
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proposed Second Amended Complaint (SAC). (ECF No. 104.) Defendants filed a response (ECF No.
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105), and Plaintiff filed a reply (ECF No. 108).
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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. The events giving rise to this action
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took place while Plaintiff was housed at Northern Nevada Correctional Center (NNCC). Plaintiff’s
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original complaint was filed on December 14, 2015. (ECF No. 1-1.) The court issued its screening order
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on April 22, 2016. (ECF No. 4.) Plaintiff was allowed to proceed with a failure to protect claim under
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the Eighth Amendment against Sergeant Miller, Correctional Officer Case, Food Service Supervisor
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Scott, Hannah Skulstad, and Caseworker Mears; however, NNCC Warden Isidro Baca and NNCC
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Associate Warden Lisa Walsh were dismissed. (ECF No. 4.)
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The court issued a scheduling order on December 22, 2016, which, among other things, gave
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Plaintiff until February 20, 2017, to join new parties or file a motion for leave to amend. (ECF No. 32
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at 1-2.)

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On March 1, 2017, Plaintiff filed a motion to join additional parties. (ECF No. 40.) At that time,

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Plaintiff stated that investigation revealed new information regarding the responsibility for failing to

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protect him while working in the culinary. (ECF No. 40.) He sought to add Associate Warden

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Shreckengost and Warden Isidro Baca as defendants because he learned that there was a shortage of

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correctional officers within the culinary. (Id.) He also asked the court to dismiss defendants Skulstad and

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Scott, stating they were not directly responsible for the treatment of Plaintiff. (Id.)

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The court issued a minute order granting Plaintiff leave to file a motion to amend after the

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expiration of the deadline, advising Plaintiff that it needed to be accompanied by the proposed amended

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pleading. (ECF No. 44.) Plaintiff was given seven days to lodge a proposed amended complaint. (Id.)

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Plaintiff filed a motion to amend and proposed first amended complaint (FAC) which named

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Assistant Warden Shreckengost, Warden Baca, Food Services Supervisor Scott Kahler, Caseworker

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Mears, William Miller, Justin Case, and Holly Skulstad. (ECF Nos. 49, 49-1.)

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On March 14, 2017, the court issued a minute order granting Plaintiff’s motion to file an
amended complaint, and ordered the FAC filed. (ECF No. 51.) The FAC was filed as ECF No. 52.

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The deadlines for discovery and dispositive motions were extended, but there was no extension
of the deadline to add parties or file a motion for leave to amend. (ECF No. 63.)

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Then, on May 9, 2017, Defendants filed a motion for clarification noting that when Plaintiff

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sought to amend his complaint, he informed the court he intended to dismiss Scott and Skulstad, but they

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were included in the FAC. (ECF No. 70.) In addition, they asserted that Plaintiff did not add new claims

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against Baca, but included the same allegations that were previously dismissed with prejudice. (Id.)

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The court held a hearing on May 22, 2017. (ECF No. 73.) After hearing from the parties, the

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court ordered that Scott Kahler and Holly Skulstad were dismissed from the action. (Id.) With respect

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to defendant Baca, the court amended its order to state that leave to amend was not given as to Baca, but

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granted Plaintiff leave to file a supplemental pleading to attempt to state a colorable claim as to Baca.

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(Id.)

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Plaintiff filed his supplemental pleading on June 2, 2017. (ECF No. 74.) Defendants filed a

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response on June 12, 2017. (ECF No. 75.) The supplemental pleading alleged: that Baca was warden at

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NNCCC and responsible for staffing of the institution, and if there was a shortage of personnel, he was
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required to contact the director and obtain necessary officers to run the prison; that Baca was aware of

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the lay out of the culinary with fourteen rooms that required inmate workers; that it required twenty-two

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inmate workers per shift; that the regulations required direct supervision of medium security inmate

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work detail; that the culinary required the use of knives, cleavers, ice picks, choppers, boiling oil, walk-

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in ovens and open flames to prepare food; that AR 411 requires direct supervision of the use of those

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tools and materials; that Baca toured areas and supervised staffing and knew culinary needed more than

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two officers to supervise the workers; and refused to assign necessary personnel; that he was aware,

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based on previous incidents, of the risk of serious harm to Plaintiff, and disregarded that risk; that Baca

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reduced the number of staff in the culinary, elevating the risk of assault; and, that Baca instituted a policy

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of forcing prisoners to work, including those who were physically vulnerable, and placed them in work

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assignments with prisoners known to be violent.

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On June 27, 2017, the court issued an order finding Plaintiff’s supplemental pleading stated a
colorable failure to protect claim against Baca under the Eighth Amendment. (ECF No. 76.)

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On June 29, 2017, Plaintiff filed a motion to amend the scheduling order. (ECF No. 77.) The

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court issued a minute order extending the scheduling order deadlines for discovery, discovery motions,

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dispositive motions, and the joint pretrial order. (ECF No. 79.) It did not address or extend the deadline

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to add parties, which had already passed.

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On September 21, 2017, Plaintiff filed another motion to amend the scheduling order, seeking

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an extension of the deadlines to complete discovery, discovery motions, dispositive motions and the joint

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pretrial order. (ECF No. 94.) The court granted the motion extending those deadlines. (ECF No. 95.)

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On November 11, 2017, Plaintiff filed his motion to amend and proposed SAC. (ECF No. 104.)

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II. LEGAL STANDARD

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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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“The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to

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amend need not be given where amendment: “(1) prejudices the opposing party; (2) is sought in bad

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faith; (3) 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 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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III. DISCUSSION

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Defendants oppose Plaintiff’s motion to amend on the basis that this case has been pending for

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two years, and that Plaintiff has not demonstrated good cause for amendment, as is required when the

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deadline to amend has expired. (ECF No. 105.) They do not assert a futility argument, or otherwise

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substantively address the allegations of the proposed SAC.

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The court issued a scheduling order on December 22, 2016. (ECF No. 32.) Plaintiff was given

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until February 20, 2017, to join new parties or file a motion for leave to amend. (ECF No. 32 at 1-2.)
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Plaintiff filed an untimely motion to join parties on March 1, 2017. (ECF No. 40) The court granted him

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leave to file a motion for leave to amend after the expiration of the scheduling order deadline, and

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ordered Plaintiff to lodge a proposed amended complaint within seven days. (ECF No. 44.) Plaintiff filed

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his proposed FAC on March 13, 2017. (ECF Nos. 49, 49-1.) Extensions of the deadlines to complete

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discovery and to file dispositive motions were subsequently granted, but there was never a further

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extension of the deadline to join parties or file a motion for leave to amend. Therefore, Plaintiff is

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required to establish good cause for seeking leave to amend at this juncture.

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It appears that Plaintiff did not did not seek leave to amend his complaint again until this time

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because he did not discover the identity of these new defendants until they were disclosed in discovery

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responses. Therefore, the court finds that good cause exists to permit amendment beyond the scheduling

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order deadline. The court cautions Plaintiff, however, that there any further attempt to amend at this late

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juncture will not be well received. The complaint was filed over two years ago, and a significant amount

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of discovery has been conducted. The new defendants will need to appear; the parties will be entitled

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to conduct what limited discovery may remain; and, then move forward with the filing of dispositive

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motions and/or trial.

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The Court has reviewed the proposed SAC for screening under 28 U.S.C. § 1915A.

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Plaintiff names Assistant Warden of Operations Ronald Schreckengost, NNCC Warden Isidro

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Baca, NNCC Unit Five Caseworker Robert Meares (Unit 5), NNCC Caseworker Hannah Skulstad

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(temporary for Unit 4 in June 2013 and in medical Unit 8), NNCC Caseworker Keith Dillyn (Infirmary

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Unit 8 on December 22, 2013), NNCC Caseworker Hughes (temporary for Unit 4 on July 9, 2013),

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NNCC Caseworker Brent Pawling (Unit 8 on July 26, 2013), NNCC Caseworker John Buchannan (Unit

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7 on April 16, 2015), NDOC Deputy Director E.K. McDaniel, NNCC Sergeant Correctional Officer

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William Miller, NNCC Correctional Officer Justin Case, and NNCC Associate Warden Lisa Walsh.

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(ECF No. 104 at 4-7.)

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The basic facts of the original complaint and FAC remain the same. Plaintiff has added several

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new defendant caseworkers that he claims were aware of his requests for protection due to his physically

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vulnerable status, but did nothing to alleviate his concerns, and he was subsequently attacked in the

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culinary. He again includes allegations against Warden Baca concerning the failure to properly staff the
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culinary and risks posed to Plaintiff that eventually bore themselves out when he was attacked, and

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includes allegations implicating Associate Wardens Walsh and Schreckengost, and Deputy Director

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McDaniel. The court finds that Plaintiff states colorable Eighth Amendment failure to protect claims

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against these defendants, and the SAC may proceed.

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There is one issue, however, that needs clarification. The original complaint named Hannah

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Skulstad, and the body referred to Hannah Skulstad. (ECF No. 5 at 3, 7.) Following screening, the

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Attorney General’s Office accepted service and filed an answer on behalf of Holly Skulstad. (ECF Nos.

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12, 23.) Plaintiff subsequently stated that he wanted to dismiss Skulstad (not using a first name), stating

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that he believed she violated his rights, but that he could not prove it. (ECF No. 40.) The court gave

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Plaintiff leave to file a proposed FAC. (ECF No. 44.) In the proposed FAC, which was eventually filed,

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he nevertheless named Holly Skulstad (ECF No. 49-1 at 3, ECF No. 52 at 3), but the body of the FAC

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referred to Hannah Skulstad (ECF No. 49-1 at 8, ECF No. 52 at 8).

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Defendants addressed the contradiction between Plaintiff’s earlier statement that he wished to

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dismiss Skulstad, and the inclusion of Skulstad in the FAC in a motion for clarification. (ECF No. 70.)

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The court hearing on May 22, 2017, and after holding a discussion with the parties, it was noted that

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Holly Skulstad was dismissed from the action. (ECF No. 73.) No one, including the court, raised the

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issue of Ms. Skulstad’s first name.

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The proposed SAC once again names Caseworker Hannah Skulstad, whom Plaintiff identifies

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as a temporary caseworker in Unit 4 in June 2013, and a caseworker in Unit 8. (ECF No. 104 at 4.) The

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body of the SAC, however, references Holly Skulstad. (ECF No. 104 at 13.) The court finds that the

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SAC includes sufficient allegations to state a claim against Ms. Skulstad, and presumes that Plaintiff

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intends to proceed against Ms. Skulstad since the SAC states more allegations against her than the

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previous two iterations of the complaint. If this is not the case, Plaintiff shall immediately submit a filing

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making his position clear. If the court is correct that Plaintiff does intend to proceed against Ms. Skulstad

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in the SAC, the parties shall meet and confer either telephonically or in writing to determine whether

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Plaintiff is proceeding against Hannah or Holly Skulstad, and within FOURTEEN days of this Order

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shall submit a filing to the court indicating the correct name of defendant Skulstad.

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IV. CONCLUSION

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(1) Plaintiff’s Amended Motion for Leave to Amend (ECF No. 104) is GRANTED.

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(2) The Clerk shall FILE the SAC (ECF No. 104 at 3-26).

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(3) Plaintiff may proceed with the claims and defendants asserted in the SAC.

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(4) 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 the defendants named in

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the SAC. 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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(5) If the court is correct that Plaintiff does intend to proceed against Ms. Skulstad in the SAC,

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the parties shall meet and confer either telephonically or in writing to determine whether Plaintiff is

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proceeding against Hannah or Holly Skulstad, and within FOURTEEN days of this Order shall submit

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a filing to the court indicating the correct name of defendant Skulstad.

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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 (21) days

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of the date a notice of acceptance of service is filed.

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(7) The current discovery and dispositive motion deadlines are VACATED. Once a responsive

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pleading is filed as to the SAC, the court will issue new deadlines, or set a status conference, if

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necessary, to extend the discovery and dispositive motion deadlines.

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IT IS SO ORDERED.

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DATED: January 26, 2018.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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