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King v. Ryan

United States District Court, D. Arizona

November 19, 2019

Ernest DuWayne King, Plaintiff,
Charles L Ryan and Corizon Incorporated, Defendants.



         Pending 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.

         I. Background

         Plaintiff Ernest DuWayne King brought an action against Defendants Corizon and Ryan[1] 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.)[2] 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.)

         Plaintiff 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.)

         The 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.)

         II. Motion to Amend

         Plaintiff, 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.)

         Defendants 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.)

         A party 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).

         Plaintiff 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.

         III. Motion to Reopen Discovery

         Plaintiff, 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.)

         Defendants 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 ...

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