Hernandez v. Banner Boswell Medical Center

          ORDER

          Honorable Eileen S. Willett United States Magistrate Judge

         Pending before the Court is Plaintiff's “Motion (1) to Amend Scheduling Order and (2) for Leave to File Amended Pleading and Join New Defendants” (Doc. 85). For the reasons set forth herein, the Court will deny Plaintiff's Motion (Doc. 85).

         I. BACKGROUND

         Plaintiff is an Arizona state prisoner. In December 2016, Plaintiff, acting pro se, initiated this civil rights action pursuant to 42 U.S.C. § 1983. The Court dismissed Plaintiff's original Complaint (Doc. 1) with leave to file a First Amended Complaint. (Doc. 6). On March 27, 2017, Plaintiff filed a First Amended Complaint (Doc. 12). The Court screened the First Amended Complaint and ordered Defendants Greenbaum and McCracken to answer the claim in Count One, which alleges that Plaintiff's rights under the Fourteenth Amendment's Due Process Clause were violated when Plaintiff was catheterized against his will. (Doc. 13 at 4-5). The Court also found that Count One stated a claim against Doe Nurse 1, Doe Nurse 2, and John Doe 3, but deferred service as to the Doe Defendants until their identities were discovered. (Id. at 4-5).

         Defendant McCracken filed his Answer on September 1, 2017. (Doc. 16). On September 15, 2017, the Court issued a Scheduling Order that set November 13, 2017 as the deadline for filing motions to amend the complaint and to join additional parties. (Doc. 19). On May 10, 2018, Defendant McCracken filed a Motion for Summary Judgment (Doc. 34). Following the denial of the Motion and an interlocutory appeal to the Ninth Circuit Court of Appeals, Defendant McCracken's Motion for Summary Judgment was resolved in February 2019. (Docs. 46, 53).

         On March 8, 2019, after receiving the Ninth Circuit mandate concerning Defendant McCracken's appeal, 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 replacement pro bono counsel for Plaintiff, who also withdrew due to a conflict of interest. (Docs. 64, 73). On July 31, 2019, the Court appointed Plaintiff's current counsel to represent Plaintiff on a pro bono basis. (Doc. 76).

         On October 11, 2019, Plaintiff, through counsel, filed the pending Motion (Doc. 85) seeking leave to file a Second Amended Complaint. The proposed Second Amended Complaint raises new causes of action against Defendants McCracken and Greenbaum and seeks to join three new Defendants.

         II. LEGAL STANDARDS

         Federal 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 November 13, 2017 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); see also Mireles v. Paragon Sys., Inc., No. 13-CV-122-L (BGS), 2014 WL 575713, at *2 (S.D. Cal. Feb. 11, 2014) (“a party moving to amend a pleading after a scheduling order deadline has passed must support the motion by demonstrating both excusable neglect and good cause”) (citation omitted); Almaraz v. City of Mesa, No. CV-10-1348-PHX-FJM, 2011 WL 1661535, at *1 (D. Ariz. May 3, 2011) (applying excusable neglect standard to motion to reopen scheduling order deadline); Hernandez v. Maricopa Cty., No. CV-07-272-PHX-JAT, 2009 WL 77647, at *1 (D. Ariz. Jan. 12, 2009) (explaining that “excusable neglect is the standard that must be met by the parties to receive an extension of an expired deadline”).

         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 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).

         III. DISCUSSION A. Plaintiff's Motion (Doc. 85) will be Denied as to Defendant McCracken As discussed, Defendant McCracken filed a Motion for Summary Judgment in May 2018. In the Motion, Defendant McCracken asserted that he was entitled to qualified immunity. (Doc. 34). In its August 16, 2018 Order denying summary judgment, 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).

         Plaintiff's proposed Second Amended Complaint adds new Fourteenth Amendment claims against Defendant McCracken. The parties dispute whether the Ninth Circuit's mandate that Defendant McCracken is entitled to qualified immunity on the Fourteenth Amendment claim raised in the First Amended Complaint applies to the new Fourteenth Amendment claims raised in the Second Amended Complaint. (Doc. 92 at 10; Doc. 93 at 3-4).

         The Court finds that the balance of relevant factors weighs in favor of denying Plaintiff's Motion (Doc. 85) as to Defendant McCracken. The reason Plaintiff provides for his nearly two-year delay in seeking to amend the First Amended Complaint is that he was representing himself and lacked sufficient legal knowledge. (Doc. 85 at 7-8). “A party's pro se status, by itself, is generally not considered sufficient to establish excusable neglect.” Mentzer v. Vaikutyte, No. CV 16-1687 DMG (SS), 2018 WL 1684340, at *5 (C.D. Cal. Feb. 26, 2018), report and recommendation adopted, No. CV 16-1687 DMG (SS), 2018 WL 1684300 (C.D. Cal. Apr. 3, 2018). On multiple occasions, the Court found that the ...