United States District Court, D. Arizona
ORDER
HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE.
This
Order addresses the following three Motions: (i)
Plaintiff's “Motion (1) to Amend Scheduling Order
and (2) for Leave to File Amended Pleading and Join New
Defendants” (Doc. 85); (ii) Defendant McCracken's
Motion to Strike (Doc. 86); and (iii) Defendant
Greenbaum's Motion to Extend the Briefing Scheduling
(Doc. 90).
I.
PROCEDURAL BACKGROUND
This is
a civil rights action filed by Plaintiff pursuant to 42
U.S.C. § 1983. In May 2017, the Court issued an Order
(Doc. 13) screening Plaintiff's First Amended Complaint
(Doc. 12). The Court found that the First Amended Complaint
stated a Fourteenth Amendment claim against Defendants
Greenbaum, McCraken, Doe Nurse 1, Doe Nurse 2, and John Doe
3. (Doc. 13 at 4). The claim is premised on factual
allegations that Plaintiff was catheterized against his will
after he was arrested by the El Mirage Police Department and
taken to Banner Boswell Medical Center for a medical
clearance. (Id. at 3-4). The Court directed service
on Defendants Greenbaum and McCracken. (Id. at 6).
The Court deferred service on the Doe Defendants until
Plaintiff discovered their identities. The Court dismissed
the Doe Defendants in March 2019 after Plaintiff failed to
show cause for failure to timely discover their identities
and effect service. (Docs. 60, 62).
In May
2018, Defendant McCracken filed a Motion for Summary Judgment
that asserted qualified immunity. (Doc. 34). In its August
16, 2018 Order, the Court stated that claims alleging
forcible catheterization may implicate the Fourth Amendment.
(Doc. 46 at 5). The Court noted that although the First
Amended Complaint does not specifically assert a Fourth
Amendment claim, Plaintiff, as a pro se prisoner litigant,
was not required to do so as long as his factual allegation
supported the claim. (Id. at 7). The Court concluded
that Plaintiff's allegations support a Fourth Amendment
claim. (Id.). The Court found the existence of
genuine issues of material fact as to whether Defendant
McCracken violated Plaintiff's Fourth and Fourteenth
Amendment rights. (Id. at 9). The Court also denied
Defendant McCracken's request for summary judgment on
qualified immunity grounds. (Id. at 11). Defendant
McCracken appealed the Court's Order (Doc. 46) to the
Ninth Circuit Court of Appeals. In its February 14, 2019
mandate, the Ninth Circuit dismissed Defendant
McCracken's appeal of Plaintiff's Fourth Amendment
claim for lack of subject matter jurisdiction. (Doc. 53-1 at
2). The Ninth Circuit concluded that the Court erred in
determining that Defendant McCracken is not entitled to
qualified immunity as to Plaintiff's Fourteenth Amendment
claim. (Id. at 2-3). The Ninth Circuit reversed the
Court's ruling on that issue and remanded the matter with
instructions to grant Defendant McCracken's Motion for
Summary Judgment on the basis of qualified immunity as to the
Fourteenth Amendment claim. (Id. at 3).
On
March 8, 2019, following the Ninth Circuit mandate, the Court
held a status conference with Plaintiff and Defendant
McCracken. (Doc. 56). The Court appointed an attorney to
serve as Plaintiff's pro bono counsel, who later withdrew
for conflict of interest reasons. (Docs. 58, 59, 61). The
Court then appointed Mitchell Turbenson of Ballard Spahr LLP
to serve as replacement pro bono counsel for Plaintiff. (Doc.
64).
On May
31, 2019, the Court held another status conference at which
counsel for Plaintiff and Defendant appeared. (Doc. 67). The
Court extended the service deadline for Defendant Greenbaum
to June 14, 2019. (Id.). Following service of
Defendant Greenbaum, Mr. Turbenson moved to withdraw as
Plaintiff's pro bono counsel based on a newly discovered
conflict of interest. (Doc. 72). The Court granted the
Motion. (Doc. 73). The Court then appointed Gregory
Scheiferstein of Snell and Wilmer LLP to represent Plaintiff
pro bono on a limited basis for pretrial and trial matters
only. (Doc. 76).
On July
19, 2019, Defendant Greenbaum filed a Motion to Dismiss (Doc.
74). Counsel for Plaintiff filed a Response (Doc. 80), and
Defendant Greenbaum filed a Reply (Doc. 81). The Motion to
Dismiss remains pending.
On
September 10, 2019, Plaintiff's counsel filed a
“Motion to Amend the Scheduling Order for Limited
Reopening of Discovery” (Doc. 83). The Motion requested
that the Court “reopen discovery on a limited basis for
a limited time so that his counsel may prepare for trial
through appropriate pre-trial discovery, which is calculated
to sharpen the issues for trial, increase efficiency, and
advance the trial's truth-seeking purpose.”
(Id. at 1). The Motion states that counsel for
Defendants McCracken and Greenbaum did not oppose the
requested limited reopening of discovery. (Id. at
4). The Court granted the Motion to Amend the Scheduling
Order and reopened discovery until March 10, 2020 for the
limited purposes detailed in Plaintiff's Motion. (Doc.
84).
II.
DISCUSSION OF PENDING MOTIONS (DOCS. 85, 86,
90)
On
October 11, 2019, Plaintiff, through counsel, filed a
“Motion (1) to Amend Scheduling Order and (2) for Leave
to File Amended Pleading and Join New Defendants” (Doc.
85). Defendant McCracken has moved to strike Plaintiff's
Motion. (Doc. 86). Defendant McCracken argues that the Court
appointed Plaintiff counsel on a limited basis that does not
include pursuing amendments to the First Amended Complaint.
The Court's July 31, 2019 Order states that Mr.
Scheiferstein is appointed “to represent Plaintiff on a
limited basis for pretrial and trial matters only.”
(Doc. 76).
As a
motion to amend a pleading is technically a pretrial matter,
the Court does not find that the October 11, 2019 Motion
(Doc. 85) exceeds the scope of the Court's Order (Doc.
76). Defendant McCracken's Motion to Strike (Doc. 86)
will be denied.
In his
“Motion (1) to Amend Scheduling Order and (2) for Leave
to File Amended Pleading and Join New Defendants” (Doc.
85), Plaintiff acknowledges that the deadline for amending
the pleadings expired nearly two years ago, on November 13,
2017. (Doc. 85 at 7). Plaintiff contends that good cause
exists to amend the deadline. (Id. at 7-9). However,
an extension of a deadline sought after its expiration
requires a showing of “excusable neglect, ” not
merely “good cause.” See Fed. R. Civ. P.
6(b)(1)(B). Excusable neglect exists where a party's
failure to comply with a deadline was negligent. See
Lemoge v. United States, 587 F.3d 1188, 1195 (9th Cir.
2009). There are at least four factors in determining whether
neglect is excusable: (i) the danger of prejudice to the
opposing party; (ii) the length of the delay and its
potential impact on the proceedings; (iii) the reason for the
delay; and (iv) whether the movant acted in good faith.
See Bateman v. U.S. Postal Serv., 231 F.3d 1220,
1223-24 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co.
v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395
(1993)). The determination of whether neglect is excusable is
ultimately an equitable one, taking into account of all
relevant circumstances surrounding the party's omission.
See Pioneer, 507 U.S. at 395. This equitable
determination is left to the discretion of the district
court. See Pincay v. Andrews, 389 F.3d 853, 860 (9th
Cir. 2004).
Briefing
on Plaintiff's Motion (Doc. 85) is incomplete. As the
Court has denied Defendant McCracken's Motion to Strike
(Doc. 86), the Court will allow Defendant McCracken to file a
response to Plaintiff's Motion (Doc. 85). The Court will
set November 13, 2019 as the deadline for
Defendant McCracken's response. Plaintiff may ...