United States District Court, D. Arizona
Honorable Eileen S. Willett United States Magistrate Judge
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).
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).
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).
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.
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.
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.
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
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).
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).
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).
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 ...