Jones v. Neven et al

Filing 340

ORDER denying 329 Plaintiff's Motion to Modify Scheduling Order and 330 Motion to Amend Pleading. Signed by Magistrate Judge William G. Cobb on 2/26/2018. (Copies have been distributed pursuant to the NEF - HJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHRISTOPHER A. JONES,

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Case No. 3:18-cv-00033-MMD-WGC
Plaintiff,

v.

ORDER
Re: ECF Nos. 329, 330

DWIGHT NEVEN, et. al.,
Defendants.

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Plaintiff has filed a Motion to Modify the Scheduling Order Per FRCP 16(b) (ECF No.

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329), and a corresponding Motion to Amend Pleading Pursuant to FRCP 15(a) (ECF Nos. 330,

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330-1 to 330-4). The remaining defendant, Dr. Steven MacArthur, has filed a response to both

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motions. (ECF Nos. 332, 333.) Plaintiff has filed replies. (ECF Nos. 335, 336.)

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For the reasons set forth below, Plaintiff’s motions are denied.

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I. BACKGROUND
The court will endeavor to summarize the lengthy history of this case, as it pertains to
resolution of these motions, as best it can.

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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. He originally filed his action in

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the Eighth Judicial District Court of the State of Nevada in Clark County on May 22, 2007, and

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the Defendants removed the action to federal court on August 15, 2007. (See ECF Nos. 1, 2, 2-1

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to 2-3.) The case was assigned to District Judge Mahan and Magistrate Judge Foley. Shortly

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thereafter, on August 30, 2007, Plaintiff filed an amended complaint. (ECF Nos. 14, 14-1.) The

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court screened the amended complaint and allowed Plaintiff to proceed with the following claims:

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(1) an Eighth Amendment deliberate indifference claim in Count I based on allegations concerning

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housing Plaintiff with a smoker; (2) Eighth Amendment conditions of confinement claims

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in Count II regarding allegations of constant illumination and being forced to sleep on a concrete

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floor; and (3) an Eighth Amendment deliberate indifference claim related to Dr. MacArthur’s

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alleged failure to advise Plaintiff that he tested positive for hepatitis C and regarding any available

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treatments, as well as a Nevada professional negligence claim based on those same allegations.

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(ECF No. 34.)

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The Defendants filed a motion to dismiss on February 8, 2008. (ECF No. 52.) Plaintiff filed

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a counter-motion to stay, where he requested a delay in ruling on the motion pursuant to what was

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then Federal Rule of Civil Procedure 56(f), now 56(d). Plaintiff asserted that he had not had an

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opportunity to review the exhibits supporting Defendants’ motion, or to conduct any discovery.

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Judge Foley entered a scheduling order on March 31, 2008, requiring any request to modify

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the scheduling order or a motion seeking leave to amend to be filed within sixty days absent a

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showing of good cause. (ECF No. 63.)

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On May 14, 2008, Judge Mahan entered an order granting Defendants’ motion, and

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denying Plaintiff’s counter-motion to stay. (ECF No. 70.) Insofar as it is relevant to the motions

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currently pending before the court, the motion was granted as to Count III on the basis that the

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medical records showed that follow up appointments indicated there was no need for treatment as

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long as Plaintiff remained asymptomatic, and Plaintiff had never inquired about his lab results.

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The professional negligence claim was dismissed without prejudice for failing to adhere to the

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Nevada statute’s affidavit requirement.

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Plaintiff filed a notice of appeal on June 6, 2008. (ECF No. 71.) The judgment had not been

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formally entered, and the Ninth Circuit dismissed for lack of jurisdiction; however, the judgment

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was subsequently entered (ECF No. 80), and Plaintiff filed another notice of appeal (ECF No. 83).

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The Ninth Circuit issued its memorandum decision on October 6, 2010. (ECF No. 90.) The

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Ninth Circuit affirmed the dismissal of the professional negligence claim without prejudice, but

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otherwise reversed and remanded. The Ninth Circuit concluded: Plaintiff did not have a

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meaningful opportunity to oppose the motion because the defendants had not served him with the

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documents filed under seal in support of his motion; he could not obtain and submit rebuttal

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evidence; the documents ordered attached to the verified amended complaint did not appear in the

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record; and, Plaintiff had not been given an opportunity to conduct discovery. The mandate issued

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on November 4, 2010. (ECF No. 91.)

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Defendants answered the amended complaint (ECF No. 103), and another scheduling order

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issued on January 5, 2011. (ECF No. 104.) Again, any request to modify the scheduling order or

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motion for leave to amend was to be filed within sixty days, absent a showing of good cause. On

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January 25, 2011, the court issued an order clarifying the scheduling order deadlines, and stated

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that any motion to amend was due by March 4, 2011 (absent a showing of good cause). (ECF No.

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109.)

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On March 4, 2011, Plaintiff filed an amended complaint. (ECF Nos. 178, 178-1, 178-2.)

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The allegations and exhibits pertaining to Count III were the same, but he sought to revive the

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professional negligence claim. During this time period, the parties engaged in discovery, motions

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to compel were filed by the Plaintiff, and discovery was extended. On June 21, 2011, Judge Foley

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addressed a request by Plaintiff to modify the scheduling order to permit amendment to revive the

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professional negligence claim. (ECF No. 181.) Judge Foley denied the motion because Plaintiff

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still had not submitted the required affidavit. This was affirmed by Judge Mahan. (ECF No. 198.)

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On November 7, 2011, Plaintiff filed a motion to amend and proposed second amended

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complaint. (ECF Nos. 231, 231-1.) He asserted that he sought to clarify the defendants involved

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in Count I, clarify the part defendant Neven purportedly played in Count II, but made no changes

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relative to Count III. The motion was denied on February 16, 2012. (ECF No. 263.) The court

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found that the allegations were already included in the amended complaint, making amendment

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futile, and that amendment would only further delay the action and prejudice the defendants.

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(ECF No. 263.)

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Defendants filed a motion for summary judgment on December 9, 2011. (ECF No. 238,

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238-1 to 238-3.) Plaintiff filed his own motion for summary judgment on December 16, 2011.

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(ECF Nos. 244, 244-1, 244-5, 266.) The court issued an order on July 5, 2012, granting

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Defendants’ motion and denying Plaintiff’s motion. (ECF No. 292.) With respect to Count III, the

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court concluded that Plaintiff did not demonstrate that the delay in informing him he had hepatitis

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C resulted in further harm since the medical records showed no need for treatment as long as he

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remained asymptomatic.

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Plaintiff filed a notice of appeal on July 11, 2012. (ECF No. 295.) The Ninth Circuit issued

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its memorandum more than four and a half years later, on February 1, 2017. (ECF No. 312.) The

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Ninth Circuit affirmed the grant of summary judgment as to the claims in Counts I and II. With

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respect to Count III, the Ninth Circuit found that genuine issues of material fact existed as to

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whether Dr. MacArthur was deliberately indifferent with respect to failing to advise Plaintiff he

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tested positive for hepatitis C. The court pointed out that he tested positive for hepatitis C in

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February, March and June of 2004, and during that same period a blood test reflected elevated

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liver enzymes, but he was not informed he had hepatitis C. Also during that time period,

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Dr. MacArthur prescribed him 800mg of ibuprofen, three times a day, which posed a significant

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risk of liver damage to a person with hepatitis C, and according to Plaintiff made him “as sick as

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a dog.” The Ninth Circuit said that a reasonably jury could find that the disregard for the hepatitis

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C and the contraindicated ibuprofen prescriptions caused unnecessary and wanton infliction of

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pain. The mandate issued on April 17, 2017, with an order on the mandate on April 24, 2017.

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(ECF Nos. 315, 317.) As such, the only remaining claim is the Eighth Amendment deliberate

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indifference claim against Dr. MacArthur in Count III.

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Plaintiff filed a motion for change of venue on April 24, 2017, which Defendants did not

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oppose. (ECF Nos. 318, 320.) On June 2, 2017, the matter was set for a global settlement

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conference on July 5, 2017. (ECF No. 23.) The parties did not achieve a settlement. (ECF No.

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326.)

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On January 19, 2018, Judge Mahan granted the motion for change of venue and the case

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was reassigned to District Judge Du, and the undersigned as Magistrate Judge. (ECF No. 327.)

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Shortly thereafter, Plaintiff filed the instant motions seeking to modify the scheduling order and

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file an amended complaint. Plaintiff wants to modify the scheduling order deadline for seeking

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leave to amend, and file a second amended complaint that he contends does not change the

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remaining claim or defendant, but only augments the facts and exhibits supporting that claim.

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II. LEGAL STANDARD

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Under Federal Rule of Civil Procedure 16(b), a scheduling order may be modified “only

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for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The Advisory Committee

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Notes provide that good cause is shown when the schedule cannot reasonably be met despite the

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diligence of the party seeking the extension. Advisory Committee Notes to Rule 16 (1983

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amendments).

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Under Rule 15(a), except for amendments made “as a matter of course,” which has long

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since expired here, amendment requires the opposing party’s written consent or leave of court.

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Fed. R. Civ. P., 15(a)(2). Here, leave to amend is required.

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While leave to amend under Rule 15(a) should be freely given, where a motion for leave

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to amend is filed after entry of the Rule 16 scheduling order deadline, as it is here, the movant

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cannot “appeal to the liberal amendment procedures afforded by Rule 15.” AmerisourceBergen

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

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

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district court is given broad discretion in supervising the pretrial phase of litigation, and its

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decisions regarding the preclusive effect of a pretrial order … will not be disturbed unless they

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evidence a clear abuse of discretion.” C.F. ex. rel. Farnan v. Capistrano Unified School Dist., 654

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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

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of the amendment … Rule 15.” Johnson v. Mammoth Recreations, Inc., 975 F.3d 604, 609

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(9th Cir. 1992) (citation and quotation marks omitted) (emphasis added). “Unlike Rule 15(a)’s

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liberal amendment policy …, Rule 16(b)’s ‘good cause’ standard primarily considers the diligent

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of the party seeking amendment.” Id. In other words, “‘[t]he focus of the inquiry is upon the

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moving party’s reasons for seeking modification.’” Farnan, 654 F.3d at 984 (quoting Johnson,

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975 F.3d at 609). “[C]arelessness is not compatible with a finding of diligence and offers no reason

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for a grant of relief.” Johnson, 975 F.2d at 609.

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Therefore, both the request to modify the scheduling order, and the belated request for

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leave to amend are governed by the good cause standard, and the focus of the court’s inquiry is on

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Plaintiff’s diligence in seeking modification of the scheduling order and leave to amend.
III. DISCUSSION

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Both the deadlines to modify the scheduling order and file a motion for leave to amend

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have long since passed (with the last deadline for both being March 4, 2011). Therefore, Plaintiff

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must establish good cause in order for the court to grant his motions. As indicated above, the

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court’s inquiry focuses on Plaintiff’s diligence.

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Plaintiff contends he was diligent because discovery continued up until the date the parties’

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dispositive motions were filed in December of 2011, and then Defendants’ motion was granted on

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July 5, 2012, and Plaintiff filed his appeal, which was not resolved until 2017. He almost

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immediately moved for a change of venue, but this was not addressed until January of 2018, and

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then he sought leave to amend. He now seeks leave to modify the scheduling order to permit him

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to seek leave to amend to include facts and exhibits he contends he obtained during discovery. He

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states that he could not have amended before this time because of the dispositive motion and

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appellate process. Plaintiff represents there is no need to re-open discovery, and most of the

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exhibits presented were utilized in connection with the dispositive motion briefing, so there will

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be no prejudice to Defendant.

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Dr. MacArthur, on the other hand, asserts that discovery has closed, no further discovery

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is warranted, dispositive motions have been decided, and no good cause exists to reopen the

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scheduling order. He further argues that attempting to amend in a decade-old case would cause

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undue delay and prejudice, particularly where Plaintiff has already amended, and then was denied

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in his subsequent efforts to amend. Dr. MacArthur contends that the issues in this case have been

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narrowed and clarified (twice at the Ninth Circuit), and there is no justification for granting leave

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to amend at this late juncture. Dr. MacArthur also focuses on an exhibit attached to Plaintiff’s

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proposed second amended complaint, the declaration of a person Dr. MacArthur describes as a

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disgruntled former prison employee, with wild, inflammatory accusations that are unsubstantiated

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hearsay.

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The court has reviewed the amended complaint and the proposed second amended

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complaint. The basic allegations of the remaining Count III are the same: Plaintiff was in an

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altercation with his cellmate in early February 2004, that resulted in the exchange of blood; he was

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given blood draws to test for various things, which revealed Plaintiff had hepatitis C; there is

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evidence that MacArthur knew this as early as February 9, 2004, but MacArthur failed to advise

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Plaintiff he had hepatitis C and consequently, did not discuss or provide available treatment. The

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proposed second amended complaint adds allegations that Plaintiff was admitted to the infirmary

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for back pain from March 10, 2004 to April 19, 2004, and between March 23, 2004 and April 2,

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2004, he was prescribed “massive” doses of ibuprofen, which he claims were contraindicated for

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someone with hepatitis C. In addition, he alleges that a lab test on March 29, 2004, showed he had

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elevated liver enzymes.

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The proposed second amended complaint also includes various exhibits. Most are not

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controversial, in the sense that they were either included with the amended complaint or used as

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exhibits in the previous dispositive motion briefing (consisting of the relevant medical records, lab

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reports, transfer reports, kites and grievances, MacArthur’s responses to Plaintiff’s requests for

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admission, Nevada statutes concerning reporting occurrences of communicable diseases, articles

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about hepatitis C). What is controversial in Dr. MacArthur’s view, however, is the addition of the

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declaration of former NDOC nursing employee, Lorraine Memory, that was submitted in another

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action concerning the medical treatment provided to another inmate by Dr. MacArthur. (ECF No.

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330-3 at 8-21.)

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Essentially, Plaintiff seeks leave to amend at this late juncture to add a few allegations and
exhibits that he contends support his Eighth Amendment claim against Dr. MacArthur.

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With the focus on Plaintiff’s diligence in requesting to modify the scheduling order and

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seek leave to amend, the problem the court finds with Plaintiff’s argument is that the cross-motion

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for summary judgment he filed in December of 2011 demonstrates that he was in possession of all

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of the facts he seeks to add now, in 2018. When he filed his motion for summary judgment in

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December of 2011, Plaintiff specifically referenced and included exhibits concerning the facts that

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he seeks to add now: that he was prescribed “massive” amounts of ibuprofen, that he had elevated

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liver enzyme levels during that timeframe, and that he complained of nausea and vomiting from

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the ibuprofen. (See ECF No. 244 at 89, 92, ECF No. 244-2 at 10, ECF No. 244-4 at 66, 77.) He

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also referenced and included as an exhibit the declaration of Ms. Memory with that motion.

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(ECF No. 244-2 at 13-25.) Plaintiff could have asked to modify the scheduling order and moved

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for leave to amend to add these facts before he filed his dispositive motion in December of 2011,

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or even concurrently with filing his motion. He did not do so.

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Plaintiff also had all of this information when the mandate issued from the Ninth Circuit

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on April 17, 2017. In fact, the Ninth Circuit discussed the allegations he seeks to add to his pleading

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in its memorandum decision. He moved for a change of venue to the northern division of the

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District of Nevada almost immediately after the mandate issued, but took no steps to modify the

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scheduling order or amend his pleading until the end of January 2018. He notes that he had filed a

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motion to change venue of the case from the southern to the northern division of the District of

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Nevada, but there was nothing precluding him from filing a motion to modify the scheduling order

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and motion for leave to amend while the motion to change venue was pending. Plaintiff was in

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possession of all of the facts and exhibits he seeks to add now, but failed to present them for

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consideration by Judge Mahan or Judge Foley, and instead waited until the case was ultimately

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reassigned.

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In light of these facts, the court cannot find that Plaintiff was diligent in trying to modify

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the scheduling order so he could move for leave to amend to add facts and exhibits that he had in

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his possession at least as of December 2011. Therefore, the motion to modify the scheduling order

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and the motion for leave to amend are denied.

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The court points out that this disposition does not prevent Plaintiff from seeking to testify

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or present evidence concerning these facts, recognizing that an attempt to do so may be met with

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a motion by Dr. MacArthur to exclude such evidence, either in a motion in limine or at trial.

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IV. CONCLUSION

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The Motion to Modify the Scheduling Order per FRCP 16(b) (ECF No. 329), and the
Motion to Amend Pleading Pursuant to FRCP 15(a) (ECF No. 330) are DENIED.

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IT IS SO ORDERED.

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DATED: February 26, 2018.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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