United States District Court, D. Arizona
Eulandas J. Flowers, Plaintiff,
Sandra Lawrence, et al., Defendants.
James A. Teilborg, Senior United States District Judge
Plaintiff Eulandas J. Flowers, who is currently confined in Arizona State Prison Complex-Eyman, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 26.) Pending before the Court are (1) a Report and Recommendation (“R&R”) from the Magistrate Judge (Doc. 87) recommending that Plaintiff’s Motion for Leave to File an Amended Complaint (Doc. 79) be denied and that Defendant Batchlor be dismissed due to Plaintiff’s failure to serve and failure to respond to the Court’s Order to Show Cause and (2) Defendants’ Motion for Summary Judgment Based on Plaintiff’s Failure to Administratively Exhaust his Claims and Alternative Motion for Judgment on the Pleadings on Count II (Doc. 58), which Plaintiff opposes (Docs. 80, 81).
On screening Plaintiff’s First Amended Complaint (Doc. 26) under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim and directed Defendants Young, Batchlor, and Marshall to respond to the Eighth Amendment excessive force and failure to intervene claims in Count One and Defendants Lawrence, Contreas, Marshall, Coleman, Young, Dean, Shane, and Batchlor to respond to the Eighth Amendment deliberate indifference claim and the claim for violation of the Arizona Constitution, Article 2 in Count Two (Docs. 19, 27.) The Court dismissed the remaining claims and Defendants. (Id.)
II. The Report and Recommendation
A. Legal Standard
This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); accord Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [magistrate judge’s] recommendations to which the parties object.”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the [R & R] to which objection is made.”).
B. Motion to Amend
The Magistrate Judge recommended denying the Motion to For Leave to File an Amended Complaint as untimely and for failure to comply with Local Rules of Civil Procedure 3.4 and 15.1(a). (Doc. 87.) Plaintiff filed an Objection to that part of the Magistrate Judge’s Report and Recommendation. Plaintiff asserts that he was not aware of Local Rules 3.4 and 15.1(a) and that the Court should freely grant leave to amend the complaint. (Doc. 99.) The Court will review the Motion to Amend de novo.
Plaintiff filed a “Motion for Leave to File an Amended Complaint”, but did not attach a copy of the proposed second amended complaint. (Doc. 79.) In his Motion, Plaintiff requests that “the Arizona Constitution, Art. 2 violation be removed from 1stamended complaint.” (Id. at 1.)
Plaintiff argues that the Court should freely grant leave to amend the complaint, referring to Federal Rule of Civil Procedure 15(a). Plaintiff, however, overlooks the fact that he also seeks to amend the Scheduling Order, which set a deadline to file all motions to amend by September 8, 2015. (Doc. 49.) Pursuant to Rule 16 of the Federal Rules of Civil Procedure, a scheduling order may not be revised except upon a showing of good cause. Here, Plaintiff has not shown good cause to amend the Scheduling Order and cannot even meet Rule 15(a)’s more liberal standard because there has been undue delay and amending the complaint would be futile. See W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991) (when determining whether leave to amend should be granted under Rule 15(a), the Court considers (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of the amendment; and (5) whether plaintiff has previously amended its complaint.) Here, Defendants have sought summary judgment and judgment on the pleadings as to Plaintiff’s claim for a violation of Article 2 of the Arizona Constitution. It is not necessary for Plaintiff to amend his complaint in order to concede that judgment is appropriate as to that claim.
Finally, Plaintiff’s argument that he was unaware of Local Rules 3.4 and 15.1(a) is not an excuse for failure to comply with those rules and, as a result, Plaintiff’s Motion could be denied on that basis alone. See, e.g., Carter v. C.I.R., 784 F.2d 1006, 1008 (9th Cir. 1986) (a pro se litigant must “abide by the rules of the court in which he litigates.”).
For all of the foregoing reasons, Plaintiff’s “Motion for Leave to File an Amended Complaint” (Doc. 79) is denied and Plaintiff’s objections to the Report and Recommendation are overruled. . . . .
C. Failure to Serve Defendant Batchlor
The Magistrate Judge’s Report and Recommendation also recommends dismissal of Defendant Batchlor without prejudice because of Plaintiff’s failure to serve Defendant Batchlor. Although Plaintiff did not object to this portion of the Magistrate Judge’s Report and Recommendation, because the Magistrate Judge did not discuss the factors necessary for a dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, the Court will analyze whether dismissal is appropriate under Rule 41(b).
Plaintiff was granted leave to file his First Amended Complaint on April 1, 2015, and was required to obtain a waiver of service or complete service within 120 days of the filing of the First Amended Complaint. (Doc. 27.) On January 8, 2016, the Court ordered Plaintiff to show cause why the action should not be dismissed as to Defendant Batchlor for failure to serve. (Doc. 75.) Plaintiff did not respond to the Order to Show Cause.
2. Legal Standard
“A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable delay.’” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “In addition, the district court must weigh the following factors in determining whether a Rule 41(b) dismissal is warranted: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.’” Omstead, 594 F.3d at 1084 (quoting Henderson, 779 F.2d at 1423). Dismissal is permitted “where at least four ...