Hawthorne v. Bennington et al

Filing 96

ORDER - Hawthorne's Motion to Modify Scheduling Order (ECF No. 84 ) and Motion to Amend Complaint (ECF No. 83 ) are granted. Clerk shall file the Fourth Amended Complaint (ECF No. 83 -1). The Fourth Amended Complaint is the operative c omplaint in this case. The Office of the Attorney General shall enter a notice regarding acceptance of service for the new Defendant and file a responsive pleading on or before October 23, 2020. SCHEDULING ORDER - Hawthorne's Motion to Extend Discovery (ECF No. 81 ) is granted in part and denied in part as follows: Discovery due by 12/28/2020. Dispositive Motions due by 1/27/2021. Proposed Joint Pretrial Order due by 2/26/2021. Signed by Magistrate Judge Carla Baldwin on 10/8/2020. (Copies have been distributed pursuant to the NEF - AB)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
3:16-cv-00235-RCJ-CLB

ADAM HAWTHORNE,

4

Plaintiff,

5

ORDER

v.

6
7

MACKENZIE BENNINGTON, et. al.,

8

Defendants.
9
10

This case involves a civil rights action filed by Plaintiff Adam Hawthorne,

11

(“Hawthorne”), against Defendant Mackenzie Bennington (“Bennington”).

12

pending before the court is Hawthorne’s motion to modify the scheduling order. (ECF No.

13
14
15
16
17
18
19
20
21
22

Currently

84). Bennington opposed the motion (ECF No. 89), and Hawthorne replied (ECF No. 90).
Further pending before the court is Hawthorne’s motion for leave to amend complaint.
(ECF No. 83). Bennington responded (ECF No. 88), and Hawthorne replied (ECF No.
90)1. Lastly, pending before the court is Hawthorne’s motion to extend discovery. (ECF
No. 81). Bennington responded (ECF No. 82), and Hawthorne replied (ECF No. 85).
Having thoroughly reviewed the record and papers, the court grants Hawthorne’s motion
to modify scheduling order (ECF No. 84), and motion for leave to amend (ECF No. 83).
Additionally, Hawthorne’s motion to extend discovery (ECF No. 81) is denied as it applies
to Mackenzie Bennington, however, an extension of discovery is granted as it applies to
Whitney Bennington.

23
24
25
26
27
28

Hawthorne’s reply (ECF No. 90) is titled “Plaintiff’s Reply to (#89)”, however, the
substance of the reply addresses arguments set forth in Defendant’s opposition to
Hawthorne’s motion for leave to amend (ECF No. 88). The court will consider
Hawthorne’s reply (ECF No. 90) as a reply to both of Defendant’s oppositions (ECF Nos.
88, 89).
1

1

1

I.

FACTUAL AND PROCEDURAL HISTORY

2

A.

Procedural History

3

On May 2, 2016 Hawthorne, proceeding in forma pauperis, filed a complaint

4

alleging prison officials retaliated against him in violation of the First Amendment; were

5

deliberately indifferent to his medical needs in violation of the Eighth Amendment; and

6

denied him due process of law in violation of the Fourteenth Amendment. (ECF No. 1-1

7

at 4-7). On March 8, 2017, the District Court entered a screening order dismissing the

8

complaint with leave to amend. (ECF No. 4). Hawthorne subsequently filed a third

9

amended complaint (“TAC”) (ECF Nos. 9/10), which the District Court dismissed on April

10

16, 2018. (ECF No. 11). Hawthorne timely appealed the dismissal of his TAC to the

11

Ninth Circuit. (ECF No. 14).

12

On February 25, 2019 the Ninth Circuit reversed the dismissal of the Eighth

13

Amendment deliberate indifference claim and First Amendment retaliation claim, affirmed

14

the dismissal of the Fourteenth Amendment due process claim, and remanded for further

15

proceedings. (ECF No. 24). Thus, the TAC (ECF No. 12) is the operative complaint in

16

this case. After the remand, the case proceeded to discovery. (See ECF No. 42). On

17

November 25, 2019, the court issued a scheduling order establishing the discovery cut-

18

off date as February 24, 2020. (ECF No. 42). Hawthorne subsequently filed a motion to

19

extend discovery on January 31, 2020. (ECF No. 46). The court granted this motion and

20

set the new discovery cut-off date as June 22, 2020. (ECF No. 52). The court then stayed

21

discovery pending the district court’s decision on an outstanding discovery dispute, which

22

resulted in a new cut-off date of September 8, 2020. (ECF Nos. 64, 68). The present

23

motion to modify the scheduling order was filed August 17, 2020. (ECF No. 84).

24

B.

Allegations in the TAC and Subsequent Discovery

25

Hawthorne is an inmate currently in the custody of the Nevada Department of

26

Corrections (“NDOC”) and is currently housed at the Northern Nevada Correctional

27

Center (“NNCC”). (ECF No. 12 at 3). On January 2, 2016, Hawthorne suffered a back

28

spasm that caused him severe pain and rendered him immobile. (ECF No. 12 at 4).
2

1

Another inmate sought help from the unit officer and the nurse on duty responded. (Id.)

2

The responding nurse took Hawthorne’s blood pressure and pulse and claimed

3

Hawthorne was faking the incident. (Id.) Hawthorne states that while he was in agonizing

4

pain and unable to move, the nurse refused to render aid. (Id.) Hawthorne then asked

5

the guard to grab him an informal grievance. (Id.) This request allegedly angered the

6

nurse and she told Hawthorne she would “write him up on charges of lying to staff and of

7

interfering with the duties of staff.” (Id.) A week after the incident Hawthorne received

8

treatment from a medical doctor and was provided a cane and wheelchair. (Id.)

9

When Hawthorne filed his initial complaint, he named defendant Mackenzie

10

Bennington as the female nurse involved in the incident. (ECF No. 1-1). However, during

11

the course of discovery Hawthorne learned there were two different nurses with the last

12

name Bennington present during the incident. (See ECF No. 83 at 4). On August 13,

13

2020, Hawthorne learned that Whitney Bennington, Mackenzie Bennington’s wife, was

14

the female nurse present during the incident. (Id.) After discovering this information,

15

Hawthorne filed the instant motion for leave to amend his complaint to add Whitney

16

Bennington as a named defendant. (Id.)

17

The defense opposes Hawthorne’s motion to amend arguing the amendment

18

would be futile because the cause of action is time-barred. (ECF No. 88 at 3). The

19

defense argues that Hawthorne has failed to show that the amended complaint relates

20

back under Rule 15(c). (Id.) The defense asserts that Rule 15(c) is not met because

21

Hawthorne failed to show Whitney Bennington knew or should have known she was a

22

proper defendant.

23

complaint relates back to the original filing because he made a reasonable mistake in

24

believing Mackenzie, a gender-neutral name, was the female nurse present in the case.

25

(ECF No. 90 at 5). Hawthorne further argues it is appropriate to impute notice because

26

the Bennington’s are married, were both present at the incident, and they share an

27

attorney. (Id.) Lastly, Hawthorne argues Whitney should have known, but-for a mistaken

28

identity, she was the appropriate defendant because the complaint consistently uses the

(Id.)

Hawthorne, on the other hand, argues that the amended

3

1

pronoun “she” and refers to the nurse as “Ms. Bennington.” (Id.) For the reasons

2

discussed below, this court agrees with Hawthorne.

3

II.

DISCUSSION

4

A.

Motion to Modify Scheduling Order

5

Hawthorne seeks to amend his pleading after the January 24, 2020 deadline set

6

by the court’s November 25, 2019 scheduling order. (ECF No. 84). Before the court can

7

address the amended pleading, Hawthorne must show good cause under Rule 16(b) for

8

the modification of the scheduling order. Coleman v. Quaker Oats Co., 232 F.3d 1271,

9

1294 (9th Cir. 2000); see Fed R. Civ. P. 16(b). The good cause standard “primarily

10

considers the diligence of the party seeking the amendment. Johnson v. Mammoth

11

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). District courts modify a pretrial

12

scheduling order when the order “cannot reasonably be met despite the diligence of the

13

party seeking the extension.” Id. (citing Fed R. Civ. P. advisory committee’s notes (1983

14

amendment)).

15

Here, the scheduling order cannot reasonably be met despite Hawthorne’s

16

diligence. See Johnson, 975 F.2d at 609. Hawthorne originally brought suit against

17

Mackenzie Bennington and frequently referred to Mackenzie as a female in his complaint.

18

On August 13, 2020, Hawthorne learned he was mistaken in the name of the female nurse

19

present during the events at issue.

20

Mackenzie’s wife, Whitney Bennington, was the female nurse on scene. (ECF No. 84 at

21

4). Four days after discovering the name of the female nurse, Hawthorne filed his motion

22

to modify the scheduling order. (Id.) It is clear that Hawthorne acted diligently in his

23

attempt to fix his honest mistake. Therefore, Hawthorne has shown good cause to modify

24

the scheduling order. Accordingly, the motion to modify the scheduling order (ECF No.

25

84) is granted.

(ECF No. 84 at 4).

Hawthorne learned that

26

B.

Motion to Amend Pleading

27

Having established that good cause exists to modify the scheduling order, the court

28

now addresses Hawthorne’s motion to amend his complaint (ECF No. 83). In determining
4

1

whether leave to amend should be granted, the guiding principle is that “leave shall be

2

freely given when justice so requires.” Fed. R. Civ. Pro. 15(a). When deciding whether

3

to grant leave to amend federal courts consider the following five factors: (1) undue delay,

4

(2) bad faith, (3) repeated failure to cure deficiencies, (4) undue prejudice to the opposing

5

party by virtue of allowance of the amendment, and (5) futility of amendment. Eminence

6

Capital, LLC v. Aspeon, Inc.316 F. 3d 1048, 1052 (9th Cir. 2003) (citing Foman v. Davis,

7

371 U.S. 178, 183 (1962)).

8

Rule 15(a) creates a presumption in favor of granting leave to amend, however,

9

leave to amend is properly denied when amendment would be futile. Foman v. Davis,

10

371 U.S. 178, 182. (1962).

Futility arises when the amendment is legally insufficient,

11

Miller v. Rykoff-Sexon, Inc., 845 F.3d 209, 214 (9th Cir. 1988), or “where the amended

12

complaint would . . . be subject to dismissal.” Steckman v. Hart Brewing, Inc., 143 F.3d

13

1293, 1298 (9th Cir. 1998); see also Carrico v. City & Cty. of San Francisco, 656 F.3d

14

1002, 1008 (9th Cir. 2011) (amendment is futile when the claimant lacks standing to bring

15

the claim).

16

In this case, Hawthorne seeks to amend his complaint to add a new defendant,

17

Whitney Bennington. (ECF No. 83 at 2). Defendants argue that the court must deny the

18

motion to amend because any claims against Whitney Bennington have expired under

19

the statute of limitations and therefore amendment would be futile. (ECF No. 88 at 4).

20

The court disagrees.

21
22

1.

Statute of Limitations

Section 1983 does not contain its own statute of limitations. Butler v. Nat’l Cmty

23

Renaissance of California, 766 F.3d 1191,1198 (9th Cir. 2014). When there is no

24

federal limitations period, “the federal courts apply the forum state’s statute of limitations

25

for personal injury actions. . . .” Id. (citing Canatella v. Van De Kamp, 486 F.3d 1128,

26

1132 (9th Cir. 2007) (internal quotations omitted)).

27

Here, the Nevada Statute of limitations for personal injury cases is two years. Nev.

28

Rev. Stat. 11.190(4)(e); Wisenbaker v. Farwell, 341 F. Supp. 2d 1160, 1163 (D. Nev.
5

1

2004). Hawthorne’s original complaint was filed well within Nevada’s two-year limitations

2

period. (ECF No. 1-1). However, Hawthorne now seeks to add a new defendant outside

3

of the limitations period, which expired in 2018. (ECF No. 83); see Nev. Rev. Stat.

4

11.190(4)(e). Thus, Hawthorne must show the amended complaint relates back to the

5

original filing date to add the new defendant outside the limitations period. See Schiavone

6

v. Fortune, 477 U.S. 21, 29 (1986). If the claims do not relate back to the filing of the

7

original complaint, amendment in this case would be futile.

8

2.

Relation Back

9

The general purpose of the Federal Rules of Civil Procedure is “to minimize

10

technical obstacles to a determination of the controversy on its merits.” G.F. Co. v. Pan

11

Ocean Shipping Co., 23 F.3d 1498, 1502 (9th Cir. 1994). Thus, in deciding whether an

12

amended complaint relates back to the original filing date, federal courts defer “to the

13

more permissive law, state or federal, which allows an amendment to relate back.” Butler,

14

766 F.3d at 1200.

15

Under the Nevada Rules, an amendment adding a defendant as a party will relate

16

back to the original pleading if “the proper defendant (1) receives actual notice of the

17

action; (2) knows that it is the proper party; and (3) has not been misled to its prejudice

18

by the amendment. Costello v. Casler, 127 Nev. 436, 441-42 (2011); see also Nev. R.

19

Civ. P. 15(c). The Nevada Supreme Court provides Rule 15(c) a liberal construction “to

20

allow relation back where the opposing party will be put to no disadvantage.” Costello,

21

127 Nev. at 442.

22

The only factor at issue in this case is whether Whitney Bennington should have

23

known that, but for a mistake concerning identity, the action would have been brought

24

against her. (See ECF No. 89 at 3). A court may impute notice and knowledge, from an

25

original defendant to a new defendant, when the parties share an “identity of interest.”

26

Costello, 127 Nev. at 441. The parties share a sufficient identity of interest when they are

27

so closely related in their . . . activities . . . the institution of an action against one serves

28
6

1

to provide notice of the litigation to the other.” Id. This case presents the circumstances

2

required to impute notice and knowledge.

3

While counsel for the defendant argues there is no evidence suggesting Whitney

4

Bennington should have known she was the proper party, the facts of this case show the

5

parties hold a sufficient identity of interest to impute knowledge. First, Mackenzie and

6

Whitney Bennington are legally married. (ECF No. 90 at 2). Second, the Benningtons

7

are both nurses employed by the NDOC and were present during the events in question.

8

(Id.) Third, the Benningtons, in their capacity as NDOC employees, will ultimately be

9

represented by the Attorney General’s Office. These facts together are sufficient to hold

10

that the new and old defendants held a sufficient identity of interest to impute notice and

11

knowledge. See Costello, 127 Nev. at 442 (a sufficient identity of interest has been found

12

when there is a shared legal counsel).
Moreover, it is clear from the face of the complaint that a mistake was made as to

13
14

the identity of the nurse involved.

The complaint consistently describes the nurse

15

involved as “Ms. Bennington” and uses the pronoun “she.” (ECF 1-1 at 4). While

16

Hawthorne named Mackenzie Bennington as the nurse involved, it is clear the complaint

17

was referring to a female nurse. (See Id.) Because Mackenzie is a gender-neutral name,

18

it is obvious to both the prison officials and the Bennington’s that Hawthorne was mistaken

19

as to the proper defendant. Therefore, Whitney Bennington should have known she was

20

the proper defendant but-for Hawthorne’s mistaken belief that her husband was the

21

female nurse.

22

Lastly, the defense does not argue that Whitney Bennington is prejudiced by the

23

amendment and this court finds no reason to believe her addition to the suit would be

24

prejudicial. Therefore, the amended complaint relates back to the original pleading.

25

Therefore, the requested amendment is not futile and the court grants the motion to

26

amend the complaint to add Whitney Bennington as a defendant in this matter. (ECF No.

27

83).

28
7

1

C.

Motion to Extend Discovery

2

Finally, before the court is Hawthorne’s motion to extend discovery (ECF No. 81).

3

Hawthorne seeks a 66-day extension to discovery. (See id.). Federal Rule of Civil

4

Procedure 16(b)(4) governs the modification of scheduling orders and discovery plans.

5

Fed. R. Civ. P. 16(b)(4) provides that “[a] schedule may be modified only for good cause

6

and with the judge's consent.” The good cause inquiry focuses primarily on the movant's

7

diligence. See Coleman., 232 F.3d at 1294-95 (9th Cir. 2000).

8

Local Rule 26-4 supplements Fed. R. Civ. P. 16 and provides that discovery plans

9

and scheduling orders may be modified for good cause, provided that a motion to extend

10

is made “no later than twenty-one (21) days before the expiration of the subject deadline.”

11

See LR 26-4; see also Local Rule IA 6-1.2.

12

considers the diligence of the party or parties seeking the extension. Johnson v.

13

Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 1992). The Court has broad discretion

14

in supervising the pretrial phase of litigation. See Zivkovic v. S. Cal. Edison Co., 302 F.3d

15

1080, 1087 (9th Cir. 2002).

The “good cause” standard primarily

16

Hawthorne’s motion to extend discovery was originally filed before he learned

17

Whitney Bennington’s name. (See ECF No. 85). Hawthorne argued that discovery related

18

to Mackenzie’s involvement in the dispute has not been sufficiently completed. (ECF No.

19

81 at 5). However, Mackenzie subsequently answered the discovery requests and

20

identified Whitney Bennington as the other nurse present. (ECF No. 85 at 2). Now that

21

Hawthorne has learned the name of the new defendant and received the answers needed

22

to identify the originally unknown nurse, Hawthorne has failed to show good cause to

23

extend the discovery cut-off date for propounding discovery against Mackenzie

24

Bennington. Therefore, the discovery cut-off date has expired as it relates to Mackenzie

25

Bennington.

26

However, in light of the court’s discussion above, Hawthorne has shown good

27

cause for the extension of limited discovery as to the newly added defendant, Whitney

28

Bennington. To date, Hawthorne has not sought discovery from the newly named
8

1

defendant. (See ECF No. 85). The recent discovery and addition of the new defendant

2

sufficiently changes the circumstances of this case to require the court to permit the

3

parties to engage in further discovery. Therefore, good cause exists to permit the parties

4

to engage in limited discovery related to the addition of Whitney Bennington as a

5

defendant. Accordingly, the court grants, in part, and denies, in part, the motion to extend

6

discovery. (ECF No. 81). The parties will have sixty (60) days from the date of this order

7

to complete discovery as it relates to Whitney Bennington only.

8

III.

CONCLUSION
Consistent with the above, IT IS ORDERED as follows:

9
10

1. Hawthorne’s Motion to Modify Scheduling Order (ECF No. 84) is GRANTED;

11

2. Hawthorne’s Motion to Amend Complaint (ECF No. 83) is GRANTED;

12

3. The Clerk of Court shall FILE the Fourth Amended Complaint (ECF No. 83-1);

13

5. The Fourth Amended Complaint is the operative complaint in this case;

14

6. The Office of the Attorney General shall enter a notice regarding acceptance of

15

service for the new defendant and file a responsive pleading on or before October 23,

16

2020;

17
18

7. Hawthorne’s Motion to Extend Discovery (ECF No. 81) is GRANTED, in part,
and DENIED, in part, as follows;

19

a. The discovery cut-off date is December 28, 2020;

20

b. Dispositive motions are due January 27, 2021; and
2020;

21

c. The joint pretrial order shall be filed no later than February 26, 2021 or
2020 or

22

thirty days after the decision of any pending dispositive motions.

23

October 8, 2020
DATED: __________________.

24
25

______________________________________
UNITED STATES MAGISTRATE JUDGE

26
27
28
9