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Crook v. Ryan

United States District Court, D. Arizona

February 24, 2017

Jason Marlin Crook, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          Eileen S. Willett United States Magistrate Judge

         This is a civil rights action filed pro se by state prisoner Jason Marlin Crook (“Plaintiff”) pursuant to 42 U.S.C. § 1983. The following discussion sets forth the Court's rulings on a number of pending motions.

         I. DISCUSSION

         A. Defendants' “Motion to Compel Expert Affidavit Pursuant to A.R.S. § 12-2603(D) and Motion to Stay Proceedings Pursuant to A.R.S. § 12-2603(E)” (Doc. 65)

         In their January 12, 2017 Motion (Doc. 65), Defendants assert that Ariz. Rev. Stat. § 12-2603 applies to Plaintiff's Eighth Amendment medical care claim brought pursuant to 42 U.S.C. § 1983.

         Ariz. Rev. Stat. § 12-2603(A) provides that “[i]f a claim against a health care professional is asserted in a civil action, the claimant . . . shall certify in a written statement that is filed and served with the claim . . . whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim.” The statute defines the term “claim” as follows:

         Claim means a legal cause of action against a health care professional under [Ariz. Rev. Stat.] §§ 12-561 through 12-563 or under [Ariz. Rev. Stat. 46-451 et seq.] or an affirmative defense or designation of a nonparty at fault to which all of the following apply:

(a) The claim is asserted against a health care professional in a complaint, answer, cross-claim, counterclaim, third party complaint or designation of a nonparty at fault.
(b) The claim is based on the health care professional's alleged breach of contract, negligence, misconduct, errors or omissions in rendering professional services.
(c) Expert testimony is necessary to prove the health care professional's standard of care or liability for the claim.

Ariz. Rev. Stat. § 12-2603(H)(1).

         Under Ariz. Rev. Stat. § 12-2603(D), if the claimant certifies that expert testimony is not required for the claim and the health care professional disputes that certification in good faith, the health care professional may move the court for an order requiring the claimant to obtain and serve a preliminary expert opinion affidavit.

         Plaintiff did not file and serve on Defendants a certification under Ariz. Rev. Stat. § 12-2603(A) when Plaintiff initiated this action. Defendants have construed Plaintiff's omission as an assertion that expert testimony is not required. (Doc. 65 at 5). Defendants seek an order under Ariz. Rev. Stat. § 12-2603(D) compelling Plaintiff to file an expert opinion affidavit.[1] (Doc. 65).

         Contrary to Defendants' contention, “[f]or purposes of a federal civil rights claim under 42 U.S.C. § 1983, the Arizona legislature may not impose additional procedural requirements on litigants.” Stewart v. Central Arizona Correctional Facility, No. CV 09-0674-PHX-MHM (ECV), 2010 WL 1814671, at *3 (D. Ariz. May 5, 2010) (denying motion to dismiss pro se prisoner's Section 1983 action for failure to comply with Ariz. Rev. Stat. § 12-2603); see also Felder v. Casey, 487 U.S. 131 (1988) (holding that state notice of claim statute does not apply to Section 1983 claims brought in either federal or state court); Sethy v. Alameda County Water Dist., 545 F.2d 1157, 1162 (9th Cir. 1976) (“[A] plaintiff seeking in federal court to vindicate a federally created right cannot be made to jump through the procedural hoops for tort-type cases that may have commended themselves to the legislative assemblies of the several states.”); Ney v. California, 439 F.2d 1285, 1287 (9th Cir. 1971) (holding that the California Tort Claims Act does not apply to a prisoner's claims under the Civil Rights Act); Willis v. Reddin, 418 F.2d 702, 704-05 (9th Cir. 1969) (“California may not impair federally created rights or impose conditions upon them.”); Endsley v. Luna, 750 F.Supp.2d 1074, 1108 (C.D. Cal. 2010) (“Although state law does not apply to Plaintiff's federal claims-that is, his claims brought under 42 U.S.C. § 1983-state law, including ‘state-imposed procedural conditions to sue, ' applies to his state tort claims.”) (emphasis in original).

         In support of their Motion to Compel (Doc. 65), Defendants cite Amor v. Arizona, No. CV-06-499-TUC-CKJ, 2010 WL 960379 (D. Ariz. Mar. 15, 2010). However, the Court in Amor held that Ariz. Rev. Stat. § 12-2603(A) applied to state law claims over which the Court had exercised supplemental jurisdiction. See Amor, 2010 WL 960379, at *3, 5-10 (holding that “Amor cannot maintain a § 1983 cause of action against Defendant Goodsite” and deciding Defendant Goodsite's motion for preliminary expert affidavit pursuant to Ariz. Rev. Stat. § 12-2603 with respect to state law claims against Defendant Goodsite).[2] Defendants' reliance on Mann v. United States, No. CV 13-1224- TUC-CKJ, 2014 WL 4230810 (D. Ariz. Aug. 27, 2014) is also misplaced. The complaint in Mann, which was brought in federal court under the Federal Tort Claims Act and as a diversity of citizen action, contained only state law malpractice and negligence claims. Id. at *1-2.

         For the above reasons, the Court finds that Ariz. Rev. Stat. § 12-2603 does not apply to Plaintiff's Eighth Amendment claim brought pursuant to 42 U.S.C. § 1983. Defendants' “Motion to Compel Expert Affidavit Pursuant to A.R.S. § 12-2603(D)” (Doc. 65) will be denied. Defendants' “Motion to Stay Proceedings Pursuant to A.R.S. § 12-2603(E)” (Doc. 65) will be denied as moot.[3]

         B. Plaintiff's “Motion for Leave to File Second Amended Complaint” (Doc. 36) and “Motion for Leave to File Third Amended Complaint” (Doc. 62)

         On October 6, 2016, Plaintiff timely filed a “Motion for Leave to File a Second Amended Complaint” (Doc. 36). Attached to the Motion (Doc. 36) is a proposed Second Amended Complaint (Doc. 36-1). The proposed Second Amended Complaint complies with LRCiv 15.1 as it indicates in what respect it differs from the First Amended Complaint (Doc. 23). Defendants have not responded to Plaintiff's “Motion for Leave to File a Second Amended Complaint” (Doc. 36). See LRCiv 7.2(i).

         Federal Rule of Civil Procedure 15(a) provides that “leave [to amend a pleading] shall be freely given when justice so requires.” “The power to grant leave to amend . . . is entrusted to the discretion of the district court, which ‘determines the propriety of a motion to amend by ascertaining the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.'” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (quoting William O. Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659, 669 n.8 (9th Cir. 2009)). “Generally, this determination should be performed with all inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999).

         The Court will grant Plaintiff's unopposed “Motion for Leave to File a Second Amended Complaint” (Doc. 36). The Court will direct the Clerk of Court to file the proposed Second Amended Complaint (Doc. 36-1) attached to Plaintiff's Motion.

         On December 27, 2016, Plaintiff filed a “Motion for Leave to File Third Amended Complaint” (Doc. 62). Attached to the Motion (Doc. 62) is a proposed Third Amended Complaint (Doc. 62-1), which indicates in what respect it differs from the First Amended Complaint. Defendants have not responded to Plaintiff's “Motion for Leave to File Third Amended Complaint” (Doc. 62). See LRCiv 7.2(i). Although Plaintiff moved for leave to file the Third Amended Complaint after the December 16, 2016 deadline set forth in the Court's Scheduling Order (Doc. 40 at 4), the Court finds that Plaintiff has shown good cause for the brief delay.[4] In addition, the Court does not find evidence of bad faith, prejudice to Defendants, or futility with respect to Plaintiff's Motion (Doc. 62). The Court will grant Plaintiff's unopposed “Motion for Leave to File Third Amended Complaint” (Doc. 62) and will direct the Clerk of Court to file the proposed Third Amended Complaint (Doc. 62-1). In accordance with its continuing obligation to screen civil rights complaints brought by prisoners, the Court will screen the Third Amended Complaint. 28 U.S.C. § 1915A(a).

         C. Screening the Third ...


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