Eckard v. Langdon et al

Filing 44

Plaintiff's motion for leave to amend his complaint (Dkt. 23 ) is DENIED. Plaintiff's motion under Fed. R. Civ. P. 56(d) to defer a ruling on defendants' pending motion for summary judgment (Dkt. 29 ), and plaintiff's motion fo r an extension of the discovery deadline (Dkt. 31 ), are DENIED. Plaintiff's motion to compel discovery (Dkt. 33 ) is DENIED. Plaintiff's motion for mental examination (Dkt. 34 ) is DENIED.Plaintiff is directed to file and serve any re sponse to defendants' summary judgment motion not later than March 23, 2020. Defendants' motion for summary judgment (Dkt. 24) is RE-NOTED for consideration on March 27, 2020. Signed by Hon. Mary Alice Theiler. ( Attachments: # 1 Copy of Amended Complaint, # 2 Copy of Defendants' Motion for Summary Judgment, # 3 Copy of Declaration in Support of Defendants' Motion for Summary Judgment) **28 PAGE(S), PRINT ALL** (Gabriel Eckard, Prisoner ID: 2316957) (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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GABRIEL ECKARD,
Plaintiffs,

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v.

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Case No. C19-0579-JCC-MAT

ORDER RE: PLAINTIFF’S PENDING
MOTIONS

ALTA LANGDON, et al.,
Defendants.

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This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before the

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Court at the present time on plaintiff’s motions: to amend his complaint (Dkt. 23), to defer ruling

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on defendants’ pending summary judgment motion (Dkt. 29), to extend the discovery deadline

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(Dkt. 31), to compel discovery (Dkt. 33), and to order a mental examination. Defendants have

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filed responses opposing plaintiff’s motions. The Court, having reviewed plaintiff’s motions,

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defendants’ responses thereto, and the balance of the record, hereby finds and ORDERS as

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follows:

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(1)

Plaintiff’s motion for leave to amend his complaint (Dkt. 23) is DENIED. Plaintiff,

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by way of the instant motion, seeks leave to file a second amended complaint adding 15 new

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defendants and multiple new claims to this action. (See id.) Plaintiff’s first amended complaint is
ORDER RE: PLAINTIFF’S
PENDING MOTIONS - 1

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the operative pleading in this action. (Dkt. 18.) Plaintiff alleges therein that he is seriously

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mentally ill and that during the course of his confinement at the Snohomish County Jail (the “Jail”),

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defendants Alta Langdon, the Jail’s Health Services Administrator, and Jacob Taylor, the Jail’s

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Mental Health Professional Lead, have denied him medically necessary mental health care,

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including psychotherapy. (See id. at 3-6.) These claims are substantially similar to the claims

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asserted by plaintiff in his original complaint. (See Dkt. 5.) Plaintiff now seeks to add to this

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action claims challenging classification decisions made by the Jail’s classification staff,

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restrictions imposed on the number of newspapers he is allowed to possess, restitution payments

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imposed as a result of plaintiff’s destruction of Jail property, and limitations imposed on plaintiff’s

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law library access. (See Dkt. 23.)

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Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that the court should freely

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give leave to amend “when justice so requires.” Five factors are typically considered when

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assessing the propriety of a motion for leave to amend: (1) bad faith; (2) undue delay; (3) prejudice

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to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously

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amended his complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Defendants

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note in their response to plaintiff’s motion that plaintiff has already been permitted to amend once

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in this action, and they argue that permitting plaintiff to amend a second time to add unrelated

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claims to this case will cause undue delay and will unfairly prejudice the two defendants originally

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named in this action. (Dkt. 27 at 4-5.) Defendants also note that since filing the instant action,

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plaintiff has received his third strike under 28 U.S.C. § 1915(g) for filing frivolous claims, and

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they argue that plaintiff is attempting to “shoehorn” new claims against new defendants into this

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pending action in an attempt to circumvent the § 1915(g) limitations. (Id. at 5-6.)

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A review of this Court’s records reveals that in 2019 alone, plaintiff filed twenty-seven
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separate civil rights actions in this Court. Twenty of those actions were filed against Snohomish

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County and/or various Snohomish County employees. 1 Over the past two years, plaintiff has

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accumulated an impressive number of “strikes” under § 1915(g) sufficient to generally bar him

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from filing future civil actions or appeals in forma pauperis. See Eckard v. Zacharias, C19-833-

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BJR, Dkt. 21 at 7 n.2; Eckard v. Langdon, et al., C19-1139-RSL, Dkt. 4 at 5.) Given plaintiff’s

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extensive litigation history in this Court, and given that the claims plaintiff seeks to add to this

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action through his second amended complaint are wholly unrelated to those asserted in his original

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and first amended complaints, this Court can only conclude that plaintiff’s request to amend was

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brought in a bad faith attempt to circumvent the § 1915(g) bar.

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The Court notes as well that this case has now been pending for some time. Discovery is

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closed and defendants have filed a motion for summary judgment which is currently ripe for

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consideration. (See Dkts. 17, 24.) Permitting plaintiff to amend at this juncture would, indeed,

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cause undue delay and unfair prejudice to the two originally named defendants, neither of whom

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is implicated in plaintiff’s proposed new claims. Plaintiff therefore will not be permitted to amend

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his complaint for a second time.

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(2) Plaintiff’s motion under Fed. R. Civ. P. 56(d) to defer a ruling on defendants’ pending

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motion for summary judgment (Dkt. 29), and plaintiff’s motion for an extension of the discovery

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deadline (Dkt. 31), are DENIED. Plaintiff, by way of these two motions, seeks additional time to

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conduct discovery which he believes is necessary to respond to defendants’ pending motion for

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See Eckard v. Thomas, et al., C19-104-RSM; Eckard v. Lee, C19-429-RAJ; Eckard v. Thomas, C19-431JCC; Eckard v. Langdon, C19-579-JCC-MAT; Eckard v. Thomas, C19-669-TSZ; Eckard v. Stites, C19-738-RSM;
Eckard v. Rizk, et al., C19-813-RSM; Eckard v. Sprouse, et al., C19-814-RSL; Eckard v. Jones, C19-815-JCC; Eckard
v. Leopold, et al., C19-816-RSM; Eckard v. Jones, C19-832-RAJ; Eckard v. Zacharias, C19-833-BJR; Eckard v. Roy,
C19-834-RSL; Eckard v. Trenary, et al., C19-879-RAJ; Eckard v. Trenary, et al., C19-880-JCC; Eckard v. Nikolina,
et al., C19-881-RSM; Eckard v. Kane, et al., C19-882-JCC-MAT; Eckard v. Kavanagh, C19-883-JCC; Eckard v.
Langdon, et al., C19-1139-RSL; Eckard v. Cornell, et al., C19-1961-RSM-BAT.

ORDER RE: PLAINTIFF’S
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summary judgment. Plaintiff indicates in his motion papers that he presented his interrogatories

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to defendants on December 11, 2019, and he asserts that defendants’ decision to file their motion

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for summary judgment on December 18, 2019 was an attempt by defendants to “game the system”

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and deny plaintiff access to discovery. (See Dkts. 29, 30, 31.) Plaintiff’s assertions are baseless

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and avail him nothing.

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The original discovery deadline in this case was October 18, 2019. (See Dkt. 11.) On

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October 21, 2019, plaintiff was granted leave to file his first amended complaint and the discovery

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deadline was extended until December 31, 2019. (Dkt. 17.) The record confirms that plaintiff

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signed original and amended first sets of interrogatories on December 11, 2019. (See Dkt. 37, Exs.

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A, B.) However, those discovery requests were not received by defendants’ counsel until

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December 20, 2019 and December 18, 2019, respectively. (See id.) As was clearly explained in

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the Court’s July 19, 2019 scheduling order, because the Federal Rules of Civil Procedure require

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that responses to discovery requests be served within thirty days after service of the requests, a

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party must serve their discovery requests at least thirty days before the discovery deadline to allow

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the opposing party time to answer. (See Dkt. 11 at 1.) Plaintiff did not sign, much less serve, his

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discovery requests thirty days prior to the discovery deadline.

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Plaintiff has not shown that defendants interfered in any way with his ability to conduct

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discovery in this matter. Plaintiff could have begun the discovery process as early as July 2019

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and, yet, he made no effort to even serve his first discovery requests until it was already too late.

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Plaintiff has not demonstrated that any extension of the discovery deadline is warranted and his

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motions must therefore be denied.

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(3)

Plaintiff’s motion to compel discovery (Dkt. 33) is DENIED. Plaintiff, by way of

this motion, seeks to compel responses to the discovery requests referenced above which he served
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on defendants in mid-December 2019. As explained above, plaintiff’s discovery requests were

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not timely and, thus, his motion to compel discovery is effectively moot. Even assuming plaintiff

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had timely served the discovery requests which he now seeks to compel responses to, plaintiff

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failed to comply with the requirement that he meet and confer with defendants regarding the

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matters in dispute prior to filing his motion to compel as required by Fed. R. Civ. P. 37(a)(1) and

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Local Civil Rule (LCR) 37(a)(1). Thus, his motion is also procedurally defective.

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(4)

Plaintiff’s motion for mental examination (Dkt. 34) is DENIED. Plaintiff seeks an

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order under Fed. R. Civ. P. 35 directing that he be provided a psychiatric evaluation, and he

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indicates that he is requesting this examination “in pursuit of discovery and the furtherance of

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justice.” (Id.) Plaintiff’s reliance on Rule 35 is misplaced. Rule 35(a) gives a court discretion to

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order “a party whose mental or physical condition . . . is in controversy to submit to a physical or

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mental examination. . . .” Such an order “may be made only on motion for good cause and on

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notice to all parties and the person to be examined.” Fed. R. Civ. P. 35(a)(2). Rule 35 does not

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permit a court to appoint an expert to examine a party seeking an examination of himself. See

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Gannaway v. Prime Care Medical, Inc., 150 F.Supp.3d 511, 523 n.4 (E.D. Pa. 2015). As plaintiff

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is essentially seeking an expert opinion to support the claims asserted in this action, Fed. R. Civ.

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P. 35 provides no basis for relief and his motion must therefore be denied.

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The Court notes as well that plaintiff specifically requests he be evaluated by Stuart

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Grassian, M.D., a psychiatrist who conducted a psychiatric evaluation of plaintiff in the fall of

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2019 for purposes of plaintiff’s ongoing criminal proceedings. (See Dkt. 19.) As defendants

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correctly point out, Plaintiff’s current request for a mental health examination by Dr. Grassian is

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purely cumulative. (See Dkt. 38.)

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(5)

As referenced above, defendants have filed a motion for summary judgment in this

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matter which is currently ripe for consideration. It does not appear that plaintiff has yet filed any

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response to that motion, likely because he was awaiting a ruling on his other pending motions.

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Now that plaintiff’s motions have been ruled on, the Court deems it appropriate to grant plaintiff

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some additional time to file a response to defendants’ summary judgment motion should he desire

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to do so. Accordingly, plaintiff is directed to file and serve any response to defendants’ summary

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judgment motion not later than March 23, 2020. Defendants’ motion for summary judgment (Dkt.

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24) is RE-NOTED for consideration on March 27, 2020.

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Because plaintiff has advised the Court that he does not currently have access to his legal

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materials given his recent transfer into the custody of the Washington Department of Corrections,

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the Court will, in conjunction with this Order, provide plaintiff copies of the documents necessary

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for him to file a response to defendants’ summary judgment motion.

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(6)

The Clerk is directed to send plaintiff copies of his amended complaint (Dkt. 18),

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of defendants’ summary judgment motion and supporting declaration (Dkts. 24, 25), and of this

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Order. The Clerk is further directed to send copies of this Order to counsel for defendants and to

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the Honorable John C. Coughenour.

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DATED this 19th day of February, 2020.

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Mary Alice Theiler
United States Magistrate Judge

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ORDER RE: PLAINTIFF’S
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