United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
issue is Defendant Smith-Whitson's
(“Defendant”) Motion for Leave to File a Second
Motion for Summary Judgment (Doc. 252). The Court now rules
on this Motion.
Ryan Evans is an inmate in the custody of the Arizona
Department of Corrections. Defendant is the Deputy Warden of
the Florence, North Unit at the Arizona State Prison Complex.
On January 26, 2017, Plaintiff filed a pro se
Complaint pursuant to 42 U.S.C. § 1983 alleging that
Defendant was deliberately indifferent to his medical needs
when she ordered that Plaintiff be moved to tent housing
“in direct defiance and contravention of the medical
orders of Dr. Christopher Johnson[.]” (Doc. 1 at 14).
After determining that Plaintiff stated an Eighth Amendment
deliberate indifference claim, the Court required Defendant
to answer. (Doc. 5 at 7, 10). Defendant denied any wrongdoing
in her Answer. (Doc. 24). The Court's Scheduling Order
set the dispositive motion deadline as January 8, 2018. (Doc.
28 at 3). After extending the dispositive motion deadline on
three prior occasions, (see Docs. 84, 175, 198), the
Court ultimately extended the dispositive motion deadline to
June 6, 2018, (Doc. 205).
October 16, 2017, Plaintiff filed a Motion for Partial
Summary Judgment on his Eighth Amendment deliberate
indifference claim against Defendant. (Doc. 90).
Defendant's motion alleged that Defendant was aware of
the November 15, 2016 Special Needs Order (“SNO”)
signed by Dr. Johnson prohibiting Plaintiff's placement
in tent housing based on an email exchange between Defendant,
Lieutenant Williams, and Nurse Williams in which Defendant
was “advised of  Plaintiff's serious medical
condition and his medical need for climate controlled
housing[.]” (Id. at 4). Upon Defendant's
motion, (see Doc. 105), the Court extended the
deadline for Defendant to respond to Plaintiff's Motion
for Partial Summary Judgment to December 15, 2017, (Doc.
107). Thereafter, Defendant filed a Response to
Plaintiff's Motion for Partial Summary Judgment and
Cross-Motion for Summary Judgment on December 15, 2017 in
which Defendant denied having any knowledge of the issuance
of the SNO for no tent housing. (Doc. 117 at 11). Defendant
also stated that she had no reason to believe Plaintiff
required a medical accommodation and that she was not
involved in the decision to transfer Plaintiff to tent
housing. (Id. at 12-13).
Order dated May 1, 2018, the Court denied the parties'
cross-motions for summary judgment, finding that the evidence
“supports the inference that Defendant was aware of the
November 15, 2016 SNO and that she was involved in its
termination.” (Doc. 201 at 15). The Court also found
that there was no “evidence in the record explaining
why the November 15, 2016 SNO said Plaintiff's
‘treatment was discontinued' that very same day,
when he was still being treated for the clavicle problem and
awaiting further surgery.” (Id.).
February 12, 2019, Defendant filed the motion at issue. (Doc.
252). Should the Court decide to grant Defendant's
Motion, Defendant requests that the trial date be vacated and
reset, if necessary, following the Court's ruling on her
second proposed motion for summary judgment. (Id. at
though the Final Pretrial Conference is scheduled for March
20, 2019 and trial is set to begin on April 1, 2019, (Doc.
244), Defendant asks that the Court grant her leave to file a
second motion for summary judgment based on “recently
discovered evidence.” (Doc. 252 at 1). However, the
dispositive motion deadline-set forth in the Scheduling Order
and in successive orders-expired over eight months ago on
June 6, 2018. (See Docs. 28, 84, 175, 198, 205).
Court declines to exercise its discretion to permit Defendant
to file a second summary judgment motion this close to the
April 1, 2019 trial date and March 20, 2019 Final Pretrial
Conference. Allowing Defendant to circumvent the dispositive
motion deadline this late in the proceedings threatens the
sort of disruption that Rule 16 was designed to prevent.
Moreover, consecutive filings strain judicial resources.
Defendant contends that this second summary judgment motion
will serve to “avoid the time and expense in having the
parties try an issue” that “will invariably have
to be addressed by the Court on a Rule 50 motion for judgment
as a matter law.” (Doc. 252 at 3). Nevertheless, the
judicial resources that would be expended to rule on
Defendant's second proposed summary judgment motion will
likely exceed the resources needed to try this case.
Defendant failed to demonstrate the diligence necessary to
meet Rule 16's “good cause” requirement.
Under Rule 16, a scheduling order “may be modified only
for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). Under the “good cause”
standard, “[t]he pretrial schedule may be modified if
it cannot reasonably be met despite the diligence of the
party seeking the extension. If the party seeking the
modification was not diligent, the inquiry should end and the
motion to modify should not be granted.” Zivkovic
v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.
2002) (internal quotation marks and citation omitted).
demonstrate “good cause, ” Defendant asserts that
she was unable to locate Nurse Williams-the individual who
documented the November 15, 2016 SNO-prior to filing her
first Motion for Summary Judgment. (Id. at 2). While
preparing her draft of the Joint Proposed Final Pretrial
Order, however, Defendant located Nurse Williams.
(Id. at 2-3). According to Defendant, Nurse Williams
advised defense counsel that Plaintiff's November 15,
2016 SNO was discontinued that same day because it was not
approved by Dr. Johnson. (Id. at 3). Defendant's
Motion then continues: “[u]ndersigned counsel has
spoken with Dr. Johnson who has confirmed that he would not
approve a ‘no tent' housing SNO for Plaintiff for
the clavicle condition he had in November 2016[, ]” and
that “he would never discontinue a medically necessary
SNO at the request of security staff such as Defendant
support of her second Motion for Summary Judgment, Defendant
provides declarations from both Nurse Williams and Dr.
Johnson. (Id.; see Doc. 255-1 at 6-10, 49-
53). Nurse William's Declaration is not dated.
(See Doc. 255-1 at 53). Even if it were dated,
however, Defendant still fails to demonstrate good cause.
Defendant's Motion insinuates that finally locating Nurse
Williams when preparing for trial led to new insight from Dr.
Johnson that “Plaintiff did not have a valid SNO for
‘no tent' housing on November 15, 2016, and that
Defendant Smith-Whitson had no involvement with Dr.
Johnson's decision not to issue such an SNO to
Plaintiff.” (Id.). Nevertheless, Dr.
Johnson's Declaration was executed on February 1, 2018.
(See Doc. 255-1 at 10). Although Defendant claims
that her Motion is based on “newly discovered evidence,
” (Doc. 252 at 1), by February 1, 2018 Defendant was
aware that Dr. Johnson did not sign off on the SNO written by
Nurse Williams because Dr. Johnson believed there was no
medical reason for Plaintiff to be issued an SNO for
“no tent” housing. (See Doc. 255-1 at
9-10). From February 1, 2018, Defendant had more than four
months to request leave to file a second motion for summary
judgment prior to the expiration of the extended dispositive
motion deadline of June 6, 2018. (See Docs. 28, 84,
175, 198, 205). Defendant's failure to do so demonstrates
a lack of diligence. See Zivkovic, 302 F.3d at 1087.
Accordingly, the Court declines to grant Defendant's
Motion as there is not “good cause” to modify the