Cazares v. Morris et al
Filing
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ORDER denying 45 Plaintiff's Motion to File Second Amended Complaint. The deadline for Plaintiff to file a response to Defendant's Motion for Summary Judgment, is extended to June 28, 2011. Signed by Magistrate Judge Lawrence O Anderson on 6/16/11.(LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Javier G. Cazares,
Plaintiff,
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vs.
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Warden E. Morris, et al.,
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Defendants.
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No. CV-09-2168-PHX-ROS (LOA)
ORDER
This matter is before the Court on Plaintiff’s Motion to File a Second Amended
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Complaint. (Doc. 45) Defendant Scheetz opposes the motion. (Doc. 46) For the reasons set
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forth below, the Court will deny the Motion.
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I. Background
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Plaintiff, proceeding pro se, commenced this civil rights action pursuant to 42
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U.S.C. § 1983 on October 15, 2009. (Doc. 1) Plaintiff also sought leave to proceed in forma
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pauperis. On January 6, 2010, the Court granted Plaintiff leave to proceed in forma
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pauperis. (Doc. 6) This case was referred to the undersigned Magistrate Judge on June 28,
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2010 pursuant to 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72, 72.2 by the Honorable Roslyn O.
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Silver, Chief United States District Judge. (Doc. 15 at 9)
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On February 24, 2010, the Court dismissed the initial Complaint for failure to state
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a claim and directed Plaintiff to file an amended complaint within thirty days. (Doc. 9)
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Plaintiff filed two subsequent motions for extensions of time, and, generously, the Court
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ultimately extended the deadline for filing the amended complaint to June 14, 2010. (Docs.
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10-13) Thus, Plaintiff was given approximately four months in which to file an amended
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complaint, more than ample time to draft a pleading that cured the deficiencies noted in the
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Court’s February 24, 2010 Order. (Doc. 9)
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On June 17, 2010, Plaintiff filed an Amended Complaint against Terry Allred,
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Moise, E. Morris, Scheetz, Dora Schriro, and Jerry Sternes. (Doc. 14) Plaintiff raised six
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grounds for relief, all alleging violations of his Eighth Amendment rights related to medical
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care. (Doc. 14) On June 28, 2010, the Court screened the Amended Complaint in
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accordance with 28 U.S.C. § 1915A(a). (Doc. 15) The Court dismissed, without prejudice,
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Counts I, II, III, IV, and VI, and Defendants Morris, Schiro, Maise, Sterns, and Allred. The
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Court directed Defendant Scheetz to answer Count V which alleged that Scheetz knew about
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Plaintiff’s medical condition but discontinued Plaintiff’s thyroid medication for several
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weeks. Plaintiff further alleged that Defendant Scheetz gave Plaintiff a placebo medication,
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rather than his prescribed medication. (Docs. 14-15)
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After some difficulty, service was executed on Defendant Scheetz on March 14,
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2011. (Doc. 24) Defendant Scheetz answered the Amended Complaint, and moved for
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summary judgment on May 6, 2011. (Docs. 24, 37) In the meantime, Plaintiff filed a
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Motion to file a Second Amended Complaint. (Doc. 31) The Court notified Plaintiff that the
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motion did not comply with Local Rule of Civil Procedure (“LRCiv”) 15.1, and directed
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Plaintiff to file an appropriate motion to amend on or before May 12, 2011. (Doc. 32)
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Plaintiff did not file a proposed Second Amended Complaint that satisfied the requirements
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of LRCiv 15.1 by the May 12, 2011 deadline. Thus, on May 23, 2011, the Court denied
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Plaintiff’s Motion to file a Second Amended Complaint for failure to comply with the
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applicable Local Rules of Civil Procedure. (Doc. 44)
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Plaintiff subsequently filed another “Motion to Accept Second Amended
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Complaint,” which complies with the technical requirements of LRCiv 15.1. (Doc. 45) Thus,
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the Court will consider the merits of Plaintiff’s request to file a Second Amended Complaint.
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II. Magistrate Judge Authority
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Generally, a motion for leave to amend the pleadings is a nondispositive matter
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that may be ruled on by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1). JJCO, Inc. v.
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Isuzu Motors America, Inc., 2009 WL 3818247, * 2 (D.Haw., November 12, 2009)
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(magistrate judge’s denial of a motion for leave to amend complaint is not a dispositive
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ruling) (citing U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102
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n. 1 (9th Cir. 1985), superseded by statute on other grounds as recognized in Simpson v.
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Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996) (noting that the plaintiff’s motion for
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leave to amend its Complaint was properly treated as a nondispositive motion when the
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magistrate judge granted the plaintiff’s motion); Continental Cas. Co. v. Dominick
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D’Andrea, Inc., 150 F.3d 245, 250-51 (3d Cir. 1998) (noting that a motion to amend is not
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dispositive); Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006) (finding a
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magistrate judge’s denial of a motion to amend on grounds of futility to be nondispositive
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and subject to review for clear error by the district judge). Thus, the undersigned Magistrate
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Judge may properly rule on Plaintiff’s Motion because it is not dispositive of Plaintiff’s case
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or existing claims alleged).
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III. Analysis
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Pursuant to the Court’s March 22, 2011 scheduling order, the deadline to amend
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the pleadings is September 23, 2011. (Doc. 25 at 2) Plaintiff’s Motion is timely under the
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scheduling order and is therefore governed by Rule 15(a) of the Federal Rules of Civil
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Procedure, which provides that Plaintiff may amend with leave of the court, and leave shall
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be freely given when justice so requires. Fed.R.Civ.P. 15(a); Johnson v. Mammoth
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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“Unlike Rule 15(a)’s liberal
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amendment policy which focuses on the bad faith of the party seeking to interpose an
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amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard
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primarily considers the diligence of the party seeking the amendment.”); Crawford v.
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Washington Nat. Ins. Co., 2009 WL 890968, * 1 (D.Ariz., April 2, 2009) (“Because the
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motion [to amend complaint] is untimely under this Court’s scheduling order, Plaintiff must
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meet the good cause standard under Rule 16 for the untimely request before the Court
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considers whether amendment is appropriate under Rule 15.”).
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Generally, Federal Rule of Civil Procedure 15 governs the amendment of civil
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complaints. Because Plaintiff has already amended his complaint and Defendant opposes the
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motion to file a second complaint, Plaintiff needs leave to further amend his complaint.
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Fed.R.Civ.P. 15(a)(2); Burnham v. U.S., 2008 WL 477874, * 1 (D.Ariz., Feb. 19, 2008)
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(“Because Plaintiff previously amended the complaint . . . , she was required under Rule 15
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to obtain Defendants’ consent or leave of Court to file the second amended complaint[,]”
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citing Glaros v. Perse, 628 F.2d 679, 686 (1st Cir. 1980)). Rule 15 provides that leave to
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amend should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Ninth
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Circuit has construed this Rule broadly. Morongo Band of Mission Indians v. Rose, 893 F.2d
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1074, 1079 (9th Cir. 1990). In determining whether it should grant leave to amend a
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complaint, the district court must consider (1) the plaintiff’s bad faith; (2) undue delay; (3)
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prejudice to the defendant; (4) futility of amendment; and (5) whether the plaintiff has
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previously amended his or her pleadings. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.
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2004) (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)), reh’g and reh’g en banc
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denied, 375 F.3d 810 (9th Cir. 2004), cert. denied, 543 U.S. 1188 (2005).
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Here, there is no evidence of bad faith. However, the remaining factors weigh
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against granting leave to amend. Plaintiff has previously been granted leave to file an
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amended complaint to correct deficiencies in his pleading. Moreover, Plaintiff waited nearly
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a year after filing his First Amended Complaint, doc. 14, to seek leave to file a second
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amended complaint which is nearly identical to First Amended Complaint. Additionally,
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Plaintiff states that he seeks to file a second amended complaint “restating . . . counts
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previously dismissed for failing to state a claim.” (Doc. 45 at 4) Indeed, the allegations in
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the proposed Second Amended Complaint are nearly identical to those in the First Amended
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Complaint. (compare docs. 14 and 45) Plaintiff’s additional allegations do not correct the
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deficiencies noted in the Court’s February 24, 2010 Order. (Doc. 9) Thus, permitting
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Plaintiff to file a second amended complaint would be futile. In summary, because the
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relevant considerations weigh against permitting amendment, the Court will deny Plaintiff’s
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Motion to File Second Amended Complaint.
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The Court notes that while Plaintiff’s motion to file a second amended complaint
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was pending, Defendant filed a summary judgment motion. Plaintiff has not filed a response,
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which was due on June 7, 2011. (Doc. 43) The Court will sua sponte extend the deadline for
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Plaintiff to file a response to Defendant’s motion for summary judgment because Plaintiff
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likely refrained from responding to the motion for summary judgment in view of his pending
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motion for leave to amend. Plaintiff is reminded that if he fails to timely respond or does not
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submit his own evidence in opposition, summary judgment, if appropriate, may be entered
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against him.
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In view of the foregoing,
IT IS ORDERED that Plaintiff’s Motion to File Second Amended Complaint,
doc. 45, is DENIED.
IT IS FURTHER ORDERED that the deadline for Plaintiff to file a response to
Defendant’s Motion for Summary Judgment, doc. 37, is extended to June 28, 2011.
DATED this 16th day of June, 2011.
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