United States District Court, D. Arizona
S. Willett United States Magistrate Judge
before the Court is Plaintiff's “Motion for Leave
to File Amended Complaint” (Doc. 79) and lodged Third
Amended Complaint. For the reasons set forth herein, the
Court will grant Plaintiff's Motion (Doc. 79).
Albert Vaughn Smith is confined in the Arizona State Prison
Complex, Eyman--Browning Unit, in Florence, Arizona. In
August 2018, Plaintiff filed a pro se civil rights Complaint
pursuant to 42 U.S.C. § 1983 alleging unconstitutional
conditions of confinement (Count I) and threat to safety
(Count II). (Doc. 1). The Court ordered Defendants Shaw,
Mooney, Kindig, Kimble, and Ryan to answer Count I and
Defendants Padilla, Quintero, Moore, and Rowe to answer Count
II. (Doc. 7 at 9). In December 2018, Plaintiff filed a First
Amended Complaint (Doc. 15). The Court screened the First
Amended Complaint and ordered Defendants Ryan, Kimble,
Kindig, Mooney, Moore, Padilla, Quintero, Rowe, and Shaw to
file a response to the First Amended Complaint. (Doc. 35 at
13, 2019, Defendants Ryan, Kimble, Kindig, Mooney, Shaw,
Padilla, Quintero, Moore, and Rowe filed their answer to the
First Amended Complaint. (Doc. 47). The Court then issued a
Scheduling Order, which set July 12, 2019 as the deadline for
joining parties and amending pleadings. (Doc. 48 at 4).
28, 2019, Plaintiff moved for leave to file a Second Amended
Complaint. (Doc. 58). The Court granted the Motion, screened
the Second Amended Complaint pursuant to 28 U.S.C.§
1915A(a), and ordered Defendants Ryan, Kimble, Kindig,
Mooney, Moore, Padilla, Quintero, Rowe, Shaw, and Medrano to
respond to the Second Amended Complaint. (Doc. 63 at 3). On
August 2, 2019, Defendants Ryan, Kimble, Kindig, Mooney,
Shaw, Ryan, Kimble, Padilla, Quintero, Moore, and Rowe
answered (Doc. 68). Defendant Medrano has not been served.
September 3, 2019, Plaintiff filed the pending “Motion
for Leave to File Amended Complaint” (Doc. 79).
Plaintiff explains that on August 29, 2019, Defendant sent
him discovery that revealed the identities of two additional
Special Security Unit (“SSU”) Officers, named T.
Reyna and J. Chavez, who Plaintiff asserts should be
“labeled as Defendants #11 and #12 in this proceeding
and should be placed in all lines and paragraphs that refer
to any and all SSU Officers or SSU Security Staff or
Defendants 3, 4, 5, 6, 10.” (Id. at 2).
Plaintiff's Motion (Doc. 79) is untimely as the deadline
for filing motions to amend expired on July 12, 2019. (Doc.
48 at 4).
Rule of Civil Procedure 15(a)(2) provides that a court should
“freely give leave [to amend] when justice so
requires.” However, the Scheduling Order's July 12,
2019 deadline for amendment of pleadings has passed. Once a
district court has filed a Rule 16 scheduling order setting a
deadline for amending pleadings, a motion seeking to amend
pleadings is governed first by Rule 16(b) and only
secondarily by Rule 15(a). A Rule 16 scheduling order may be
“modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). Further, 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
Plaintiff's noncompliance with the July 12, 2019 deadline
for moving to amend the pleadings resulted from receiving
discovery that revealed the identities of additional
defendants. Plaintiff states that he received the discovery
on August 29, 2019. (Doc. 79 at 1). Plaintiff filed his
“Motion for Leave to File Amended Complaint”
(Doc. 79) just a few days later, on September 3, 2019. The
Court finds that Plaintiff has established good cause for
modifying the Scheduling Order to permit him to seek leave to
file a Third Amended Complaint. Valles v. Gen-X Echo B,
Inc., No. 13-cv-00201-RM- KLM, 2013 WL 5832782, at *12
(D. Colo. Sept. 27, 2013) (“In some cases, a party may
learn new information after the amendment of pleadings
deadline has passed and, in such an instance, the
newly-acquired information satisfies Rule 16's good cause
requirement.”); Lewis v. Denver Fire
Dep't, No. 09-cv-00004-PAB-MJW, 2010 WL 3873974, at
*7-8 (D. Colo. Sept. 28, 2010) (good cause shown to amend
complaint after the scheduling order's deadline where
plaintiff first learned of new information through
Court also finds that Plaintiff has established excusable
neglect for not complying with the July 12, 2019 deadline to
move for leave to file the Third Amended Complaint. First,
Defendants do not assert, and the Court does not find that
allowing Plaintiff to seek leave to file a Third Amended
Complaint would significantly prejudice Defendants. Second,
granting Plaintiff leave to file a Third Amended Complaint
would not unreasonably delay this case. Discovery is still
ongoing and one of the Defendants (Defendant Medrano) has not
yet been served. Third, Plaintiff has reasonably explained
that the delay in moving to amend was caused by receiving
additional information through discovery. Finally, nothing in
the record suggests Plaintiff has not acted in good faith
during this case. Because Plaintiff has established good
cause and excusable neglect for requesting leave to amend
after the deadline expired, the Court will determine whether
leave should be granted under Rule 15(a).
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). A motion for leave to amend
should be denied on futility grounds, “only if no set
of facts can be proved under the amendment to the pleadings
that would constitute a valid and sufficient claim or
defense.” Miller v. Rykoff-Sexton, Inc., 845
F.2d 209, 214 (9th Cir. 1988).
reviewing Plaintiff's Motion (Doc. 79), Defendants'
Response (Doc. 89), and Plaintiff's Reply (Doc. 91), the
Court does not find evidence of bad faith, prejudice to
Defendants, or futility with respect to Plaintiff's
request to file a Third Amended Complaint. In addition,
although the proposed Third Amended Complaint does not comply
with Local Rule of Civil Procedure (“LRCiv”)
15.1,  the Court was able to easily compare the
Second Amended Complaint and proposed Third Amended
Complaint. The Court therefore will suspend the imposition of
LRCiv 15.1 as to the proposed Third Amended Complaint.
See LRCiv 83.6. The Court will grant Plaintiff's
“Motion for Leave to File Amended Complaint”
Court has a continuing obligation to screen civil rights
complaints brought by prisoners. 28 U.S.C. § 1915A(a).
The Court will order Defendants Ryan, Kimble, Kindig, Mooney,
Moore, Padilla, Quintero, Rowe, Shaw, Medrano, Reyna, and
Chavez to answer the Third Amended Complaint for the reasons
stated in the Court's Orders (Docs. 35, 63) screening the
First and Second Amended Complaints.