United States District Court, D. Arizona
HONORABLE ROSEMARY MARQUEZ, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion to Amend the
Scheduling Order to Reopen Discovery for Limited Purposes and
Motion for Leave to File A Second Amended Complaint. (Doc.
177.) Defendants filed a Response opposing the reopening of
discovery and the filing of a Second Amended Complaint. (Doc.
182.) Plaintiff replied. (Doc. 183.) For the following
reasons, the Motion to Amend the Scheduling Order and Reopen
Discovery will be granted.
Ernest DuWayne King brought an action against Defendants
Corizon and Ryan in 2016, alleging that they violated his
Eighth Amendment right to be free from cruel and unusual
punishment by denying him medical care related to a wound on
his buttock. (Docs. 1, 7.) Plaintiff alleges that Defendants
caused the wound by providing him with too-small pull-ups and
subsequently refused to provide him with the necessary
medical care to treat the wound. (Doc. 7.) He claims that
Defendants' refusal to properly treat the wound caused
him years of unnecessary pain and suffering. (Id.)
litigated this case pro se through the summary judgment
stage, at which point the Court dismissed all Defendants
except for Corizon and Ryan. (Doc. 166.) After denying
summary judgment as to Defendants Corizon and Ryan, the Court
appointed attorney Benjamin Calleros of the law firm Perkins
Coie LLP to represent Plaintiff as pro bono counsel. (Doc.
168.) The order appointing Mr. Calleros specifies that his
representation of Plaintiff would be limited to
“preparation for trial of the existing claims,
settlement negotiations of the existing claims, and trial of
the existing claims.” (Doc. 168.) The order further
states that Mr. Calleros's representation would not
include any additional discovery. (Doc. 168.)
pending Motion to Amend the Scheduling Order to Reopen
Discovery for Limited Purposes and Motion for Leave to File A
Second Amended Complaint was filed on August 16, 2019. (Doc.
177.) The parties participated in a Status Conference before
Judge Deborah M. Fine on August 26, 2019, at which guidelines
were set for a Settlement Conference set for September 20,
2019. (Doc. 178.) The Settlement Conference was then
continued to November 13, 2019 because Plaintiff was unable
to be transported due to medical issues. (Doc. 186.) The
parties did not reach a settlement at the November 13
Settlement Conference. (Doc. 191.) No. trial date has been
set. The parties' Joint Proposed Pretrial Order is
currently due December 16, 2019. (Doc. 188.)
Motion to Amend
through pro bono counsel, moves to file a second amended
complaint. (Doc. 177.) Plaintiff argues that the proposed
amended complaint merely clarifies and restates the facts at
issue. (Doc. 177 at 6-7.) The only new claim in the amended
complaint is for attorneys' fees. (Id. at 6.)
Plaintiff argues that Defendant will suffer no prejudice from
an amended complaint because the underlying claim remains the
same. (Id. at 7.)
oppose the request to amend. (Doc. 182.) Defendants argue
that Plaintiff has not complied with LRCiv. 15.1; that the
proposed amended complaint goes beyond mere clarification by
identifying new individuals, “tactics, ”
procedures, and claims; that the request to amend is late;
and that the operative complaint is sufficient. (Id.
at 5.) Defendants do not specifically argue that they would
be prejudiced by an amended complaint, nor do they cite to
any legal authority other than LRCiv. 15.1. (Id.)
may amend its pleading once as a matter of course within the
first 21 days after serving it. Fed.R.Civ.P. 15(a)(1)(A).
“In all other cases, a party may amend its pleading
only with the opposing party's consent or the court's
leave. The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). The underlying
purpose of Rule 15 is to “facilitate [a] decision on
the merits rather than on the pleadings or
technicalities.” United States v. Webb, 655
F.2d 977, 979 (9th Cir. 1981). The rule permitting amendment
is “to be applied with extreme liberality.”
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1051 (9th Cir. 2003). Under Rule 15(a)(2), amendments
should be permitted unless (1) the amendment would unfairly
prejudice the non-moving party; (2) the moving party unduly
delayed in bringing the amendment; (3) the moving party is
making the proposed amendment in bad faith; or (4) the
proposed amendment is futile. See United Union of
Roofers, Waterproofers, & Allied Trades No. 40 v. Ins.
Corp. of Am., 919 F.2d 1398, 1402 (9th Cir. 1990).
“In the absence of any apparent or declared reason. . .
leave [to amend a complaint] should. . . be freely
given.” Foman v. Davis, 371 U.S. 178, 182
(1962). “[T]he consideration of prejudice to the
opposing party  carries the greatest weight” of the
factors that weigh against granting leave to amend.
Eminence Capital, LLC, 316 F.3d at 1052; see
also DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186
(9th Cir. 1987).
has met the standard under Federal Rule of Civil Procedure
15(a)(2) to amend his complaint. Defendants have not shown,
nor does the Court find, unfair prejudice, undue delay, bad
faith, or futility in the proposed amendment. Plaintiff's
proposed amendments are limited in scope and Defendants would
not be unfairly prejudiced by allowing amendment. The Court
recognizes that the deadline for moving to amend pleadings
expired years before Plaintiff filed the pending Motion to
Amend; however, counsel for Plaintiff filed the instant
motion approximately three and one-half months after being
appointed. This is not an undue delay, and the Court finds
that the appointment of pro bono counsel is sufficient to
establish good cause to alter the deadline for amending
pleadings. See Fed. R. Civ. P. 16(b)(4) (scheduling
order may be modified for good cause). Furthermore, under the
circumstances of this case, the Court finds that
Plaintiff's failure to comply with the bracketing and
underlining requirements of LRCiv 15.1(a) is excusable.
Plaintiff's Motion to Amend will be granted.
Motion to Reopen Discovery
through pro bono counsel, additionally moves to reopen
discovery. (Doc. 177.) Plaintiff argues that further
discovery is warranted because Plaintiff was previously
unrepresented and therefore had to conduct discovery without
legal expertise. (Id. at 5.) Plaintiff has not
obtained depositions of prison employees nor hired a medical
expert. (Id.) Plaintiff argues that further
discovery, including depositions and a medical expert, would
help trial run more smoothly. (Id.) Plaintiff
further argues that reopening discovery would not prejudice
Defendants. (Id. at 5-6.)
oppose the request to reopen discovery. (Doc. 182.)
Defendants argue that reopening discovery would prejudice
them because it would shift Defendants' litigation
strategy and require them to conduct additional discovery.
(Id. at 4.) Defendants argue that they would also
have to obtain an expert witness and conduct ...