United States District Court, D. Arizona
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE
before the Court are Plaintiff's Motion for Subpoena of
Medical Records (Doc. 38), Motion to Appoint an Independent
Expert (Doc. 39), Motion to Extend Deadline to Add Parties
(Doc. 40), Motion for Leave to File Second Amended Complaint
(Doc. 41), Motion to Add All Jane and John Does (Doc. 49),
and a document titled “Reply to Defendants' Re:
Motion to Add Parties, ” which the Court construes as a
Second Motion for Leave to File Second Amended Complaint
(Doc. 54). As discussed below, the Court will deny
each pending Motion as either premature, inadequately
supported, or unduly burdensome.
Motion for Subpoena of Medical Records (Doc. 38)
requests that the Court issue a subpoena duces tecum for
medical records documenting Plaintiff's ocular surgery.
(Doc 38.) The records are currently in the possession of Dr.
Diego Calonje, an ophthalmologist in private practice.
(Id.) Plaintiff alleges that he required ocular
surgery due to the injuries alleged in this lawsuit.
(Id.) Under Arizona law, Plaintiff has the right to
request and receive his personal medical records directly
from his provider without the need for a subpoena.
See A.R.S. § 12-2293(A) (“[T]he health
care provider in possession of [medical records] shall
provide access to or copies of the records, ” unless an
exception applies, “on the written request of a
patient.”) Plaintiff has not alleged that he has
attempted to request his records through this ordinary
process. The Court will therefore deny Plaintiff's
request for a subpoena at this time. However, as it appears
the records are likely relevant to this lawsuit, Plaintiff
shall be granted leave to refile his Motion for Subpoena
should he be unable to obtain the relevant records through a
direct request to the custodian of those records. Any refiled
Motion for Subpoena must comply with General Order 18-19,
which provides, in relevant part:
[A]ny self-represented litigant who wishes to serve a
subpoena must file a motion with the Court for issuance of
the subpoena. The motion must (1) be in writing, (2) attach a
copy of the proposed subpoena, (3) set forth the name and
address of the witness to be subpoenaed and the custodian and
general nature of any documents requested, and (4) state with
particularity the reasons for seeking the testimony and
Motion to Appoint an Independent Expert (Doc. 39)
requests the Court appoint an independent ophthalmologist to
evaluate and provide testimony regarding the injuries
allegedly caused to his eye by Defendants' use of
excessive force. (Doc. 39.) Plaintiff argues that expert
testimony is necessary because of the complicated nature of
the human eye and of Plaintiff's injuries. (Id.)
Rule 706 of the Federal Rules of Evidence allows a court to
appoint an expert witness on a party's motion. Fed R.
Evid. 706(a). However, appointment of an expert witness is
not necessary at this point in the proceedings.
Defendants' pending Motion for Summary Judgment (Doc. 43)
is limited to the issue of exhaustion of administrative
remedies and does not address the merits of Plaintiff's
claims. If, at a later point in these proceedings, the Court
faces contradictory evidence that is particularly complex or
confusing, it may re-evaluate whether to appoint a neutral
expert witness under Rule 706. Plaintiff's Motion will be
denied without prejudice. . . . .
Motion to Extend Deadline to Add Parties (Doc. 40) and Motion
to Add All Jane and John Does (Doc.
moves for an extension of the deadline to add parties,
alleging that multiple officers not previously named
“stood by” during the excessive force alleged by
Plaintiff and that other officers helped secure Plaintiff in
a restraint-chair. (Doc. 40.) Plaintiff also moves “to
have all Jane and John Does added to the list of
Defendants.” (Doc. 49.)
oppose both Motions, arguing that any effort to add an
additional defendant would be futile because the statute of
limitations has run. (Doc. 47.) The statute of limitations
for claims under 42 U.S.C. § 1983 is governed by state
law, see Butler v. Nat'l Cmty. Renaissance of
Cal., 766 F.3d 1191, 1198 (9th Cir. 2014), and the
Arizona statute of limitations for personal injuries is two
years, see A.R.S. § 12-542. Defendants argue
that Plaintiff's action accrued on October 6, 2017, the
date that the alleged excessive force occurred, and that the
statute of limitations therefore expired on October 6, 2019.
(Doc. 47.) Defendants are correct that Plaintiff's action
accrued at the time of his injuries even though he was
required to exhaust his administrative remedies before filing
suit. See Soto v. Sweetman, 882 F.3d 865, 871 (9th
Cir. 2018). But Defendants ignore that the statute of
limitations was likely tolled during the time when Plaintiff
was diligently seeking to exhaust his administrative
remedies. See Id. “Federal courts in §
1983 actions apply the state statute of limitations from
personal-injury claims and borrow the state's tolling
rules.” Id. “Arizona law requires
tolling the statute of limitations while a claimant pursues
Arizona's prison grievance process, ” at least
during any period where a prisoner-plaintiff diligently
pursues required exhaustion. Id. Defendants have
offered no explanation for why that general rule would not
argue more persuasively that amendment would be futile
because Plaintiff has made no factual allegations against the
proposed Doe Defendants except that they “stood
by” while Plaintiff's rights were allegedly
violated or assisted in securing Plaintiff in a restraint
chair-allegations not sufficient to state a claim upon which
relief might be granted. (Doc. 50.) To properly plead a
constitutional violation under § 1983, Plaintiff must
“plead that each Government-official defendant, through
the official's own individual actions, has violated the
constitution.” Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009). Plaintiff has not plead a constitutional
claim relating to being placed in a restraint chair, and the
allegation that other officers “stood by” during
alleged excessive force does not allege that those officers
personally violated Plaintiff's rights. As Plaintiff has
provided no allegation that the proposed Doe Defendants'
“own individual actions” violated Plaintiff's
constitutional rights, it appears that the proposed amendment
would be futile. Plaintiff's Motions will be denied
Motion for Leave to File Second Amended Complaint (Doc.
moves for leave to file a Second Amended Complaint
(“SAC”) (Doc. 41), and Defendants do not oppose
that Motion (Doc. 47). Plaintiff proposes certain stylistic
amendments, including changing the description of the injury
to his eye from “strike” to “nick, ”
and changing the words “floor, pod, [and] area”
to “unit.” (Doc. 41.) Plaintiff also proposes
amending Count 3 from a Fourth Amendment Search & Seizure
claim to a First Amendment Free Speech/Retaliation Claim.
(Id.) Finally, Plaintiff proposes amending his
request for damages from $367, 000 to ...