KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Plaintiff seeks leave to amend, and filed a motion to defer ruling on defendants' motion for summary judgment, and a motion for leave to file a surreply.
As set forth more fully below, the undersigned grants plaintiff leave to file a surreply, and recommends that plaintiff's motion to amend and to defer ruling on the motion for summary judgment be denied, and plaintiff be granted an extension of time to file his opposition.
Because defendants have filed an answer, Rule 15(a)(2) governs plaintiff's motion to amend, as follows:
Fed. R. Civ. P. 15(a)(2). "Rule 15(a) is very liberal and leave to amend `shall be freely given when justice so requires.'"
Plaintiff is 38 years old, and claims that he cannot sit or stand "without experiencing extremely severe pain." (ECF No. 1 at 8-9.) When housed at Pleasant Valley State Prison, plaintiff claims his doctor diagnosed plaintiff with a spinal injury resulting in nerve damage and prescribed nerve pain medication Oxycarbazepine, and told plaintiff that if his condition did not improve, he would need an MRI to determine why the pain is so severe. (ECF No. 1 at 6.)
Plaintiff states the nerve pain medication provided limited relief, and his mobility was still impaired. On September 7, 2012, plaintiff was transferred to California State Prison, Solano ("CSP-Solano"). Despite presenting with complaints of extreme pain, plaintiff contends that his primary care physician at CSP-Solano, defendant Dr. Lotersztain, refused to prescribe adequate pain relief, to perform an MRI to determine the etiology of plaintiff's pain, or to refer plaintiff to an appropriate specialist. In addition, at various appointments, plaintiff declares that defendant Lotersztain has told plaintiff: "I know you're in severe pain, but the thing is we're just not going to spend any money to do anything about it." (ECF No. 1 at 8, 9.) Or, the pain is "part of being in prison." (ECF No. 1 at 9.) On February 4, 2015, when plaintiff allegedly presented with extremely severe pain, plaintiff claims Dr. Lotersztain acted exasperated, and immediately declared that "I'm not gonna give you an MRI. . . . I know your mobility is impaired and I know you're in a great deal of pain. Look, I don't care, it[`]s part of the penalty for your crimes." (ECF No. 1 at 10.)
Plaintiff also alleges that defendants Pfile and Kuersten denied plaintiff's administrative appeals seeking pain relief, and failed to obtain medical treatment for plaintiff, despite having knowledge that "extreme departures from the standard of care pervaded CSPS's medical services operation." (ECF No. 1 at 8.) In one appeal, plaintiff notes that although staff claims plaintiff is in exceptional physical fitness, they fail to address those times he was "completely immobilized by his back injury and unable to get up off the floor, much less walk." (ECF No. 1 at 20.) Plaintiff claimed staff "never diagnosed the problem [or gave] a reasonable explanation for why [plaintiff] has been suffering such severe pain at his fairly young age." (
Plaintiff seeks declaratory and injunctive relief, as well as money damages for the alleged violation of his Eighth Amendment rights, and includes various state law claims. (ECF No. 1 at 4-5; 10-12.) His request for injunctive relief was denied on November 12, 2015. (ECF No. 19.)
Like the original complaint, plaintiff alleges that defendants Lotersztain, Pfile and Kuersten violated plaintiff's Eighth Amendment right to adequate medical care. Plaintiff provides additional factual allegations, including specific dates of treatment, but the gravamen of plaintiff's claims remain the same. Plaintiff seeks compensatory and punitive damages for the alleged violation of his Eighth Amendment rights, including various state law claims. (ECF No. 35 at 4-5, 20-21.) However, plaintiff omitted his claims for declaratory and injunctive relief.
Plaintiff argues that all five factors weigh strongly in favor of amendment because the summary judgment motion was filed early in the litigation, the case is a year old, and the discovery period was only 100 days long. Plaintiff contends that his amended complaint corrects pleading deficiencies and he has not previously amended. Moreover, plaintiff argues that the scheduling order did not set a deadline for amending the pleadings; therefore, he contends that Rule 15(a) governs his motion. But even if Rule 16(b) controls, plaintiff argues that because he is proceeding pro se, defendants were advantaged because they were not required to disclose the declaration of their medical expert during discovery. Plaintiff contends that the medical expert's declaration, as well as the additional 100 pages of medical records, constitute newly-discovered evidence. Plaintiff argues that before seeing the medical expert's report, he did not appreciate the detailed factual allegations concerning medical encounters that his pleading should contain. Thus, plaintiff claims he has diligently sought leave to amend.
In opposition, defendants do not consent to amendment of the complaint, arguing that they have incurred great litigation costs in gathering discovery and preparing their dispositive motion on all of plaintiff's claims, and that further amendment at this late date would unfairly prejudice them by negating the resources expended to date. In addition, defendants contend that amendment would unduly delay the litigation, requiring screening of the amended complaint, a responsive pleading, reopening of discovery, and re-preparation of their dispositive motion. Defendants argue that plaintiff has had all medical records used in defendants' motion since January 2016, and contend that plaintiff's motion to amend could have been filed over four months ago, prior to the filing of the summary judgment motion.
Moreover, defendants contend that amendment is futile because the amended complaint does not add any new allegations or defendants, but merely enhances factual allegations and adds exhibits. Defendants argue that such factual contentions and exhibits can be used to oppose defendants' motion for summary judgment. Further, defendants argue that using these documents to amend does not strengthen plaintiff's case, but may subject him to a motion to dismiss or cause the amended complaint to be screened out because they demonstrate the medical findings do not support plaintiff's claims. Defendants contend that the exhibits in support of the amended pleading "often contradict the allegations they are offered to support." (ECF No. 36 at 3.) Defendants do not argue that plaintiff is acting in bad faith.
In reply, plaintiff states that it is "unheard of" for a pro se prisoner litigant to proceed on an original complaint, and that there is a "strong public policy permitting amendment." (ECF No. 38 at 1.) Plaintiff argues that defendants weakly resist plaintiff's assertion that their motion introduced over 100 pages of new records, but do not deny that the four doctors' declarations introduced new evidence. Plaintiff contends that defendants' unsworn statement that there were not 100 pages of newly discovered records appended to their motion is insufficient because it was not made under penalty of perjury; thus, plaintiff argues that his sworn statement must be taken as true.
Plaintiff argues that if, as defendants claim, the proposed amendment weakens plaintiff's case, then defendants cannot be prejudiced by it. Plaintiff states that both parties agree that Rule 15(a)(2) governs the amendment. Plaintiff contends that plaintiff's amended complaint is his good faith attempt to lay out the "actual facts" of the case. Plaintiff claims that permitting the amendment will not delay the proceedings at all. Plaintiff argues that the case is a "mere 14 months old," and that the deadline for opposing the motion for summary judgment should not change at all due to the amendment because any "enhanced" factual allegations can be addressed by defendants in their reply. Plaintiff argues that his amendment is not futile because the proposed amended complaint includes new facts, based on new evidence introduced by defendants, which plaintiff claims he can prove. Plaintiff argues that amendment is only futile if he can allege no facts that would state a cognizable claim.
The first of the four relevant factors, bad faith, weighs slightly against granting leave to amend or is neutral. Where a party "[f]acing a summary judgment motion . . . s[eeks] to amend its complaint to add causes of action on which discovery had not been undertaken," that fact "might reflect bad-faith on the part of the" moving party.
Plaintiff's argument that he did not have 100 pages of medical records is unavailing because plaintiff was present during the medical treatment and has access to his medical records at the prison. Although defendants provided plaintiff with copies of his medical records, they were not required to do so. Moreover, plaintiff concedes that he "has a vivid recollection of his various medical encounters with the defendants, as well as his physical condition." (ECF No. 34 at 2.) Plaintiff fails to provide legal authority to support his claim that the doctors' declarations submitted in connection with the motion for summary judgment constitutes "newly discovered evidence" that justifies allowing him to amend at this stage of the proceedings.
Plaintiff was facing a summary judgment motion when he filed his motion for leave to amend and seeks to add additional factual allegations that may require new or additional discovery, perhaps re-opening plaintiff's deposition. However, the record does not contain any other evidence of bad faith. Therefore, this factor slightly favors denying leave to amend.
The second factor, prejudice to defendants, is the most important of the four factors, and weighs against granting leave to amend.
The nonmoving party is prejudiced when granting leave to amend would result in a need to reopen the discovery period and the period to file dispositive motions, or when dispositive motions already have been decided.
Here, defendants will be prejudiced if plaintiff is granted leave to amend because plaintiff has already been deposed, discovery is closed, and defendants have filed a substantive motion for summary judgment, complete with four declarations by medical doctors, one of which is a nonparty expert witness. Although plaintiff appears to argue that defendants could simply address plaintiff's additional factual allegations in a reply to his opposition to the pending motion for summary judgment, plaintiff is mistaken. Once an amended complaint is filed, a new responsive pleading is required. If defendants' pleading is a motion to dismiss, and the case survives dismissal, an answer is required. Then, defendants will prepare a second motion for summary judgment, again requiring declarations by medical professionals and an expert witness. In addition to adding to defense counsel's workload, it increases defendants' expenses, essentially doubling them for the same case. Thus, granting plaintiff leave to amend at this stage of the proceedings would prejudice defendants.
Similarly, the third factor, undue delay, weighs against granting plaintiff leave to amend. Plaintiff did not file the motion to amend until after discovery closed and defendants filed their motion for summary judgment.
Courts have found undue delay weighing against granting leave to amend where a motion for leave to amend is filed near or after the close of discovery.
In addition, plaintiff is an experienced litigator in this court. Plaintiff has filed multiple cases in this court,
Plaintiff argues that the case is "not that old," he has not yet amended his pleading, and that requesting leave to amend in response to a pending motion for summary judgment is "far from an unusual or unprecedented response," citing
The fourth factor, futility, weighs in support of granting leave to amend.
Plaintiff argues that his amended complaint is not futile because it contains "new facts, predicated on substantial new evidence introduced by the defendants, which plaintiff can prove," citing
Plaintiff does not articulate the specifics of the alleged "new evidence," other than to claim that the declarations provided by defendants in support of their motion introduced such "new evidence." However, plaintiff's proposed amended complaint does not raise new claims that are not cognizable, but rather raises the same cognizable Eighth Amendment claims against the same defendants. His claims are not implausible. Thus, it would not be futile for plaintiff to amend, and the fourth factor weighs in favor of granting leave to amend.
For the reasons stated above, three of the four factors, including undue prejudice, the most important one, favor denying plaintiff leave to amend. Therefore, plaintiff's motion for leave to amend should be denied.
Plaintiff argues that defendants' motion for summary judgment "introduced a substantial amount of new evidence, much of which is scientific and technical," including Dr. Barnett's expert declaration, defendants' declarations, and over 100 pages of medical records plaintiff claims he had not seen prior to receiving the motion. (ECF No. 33 at 1.) Plaintiff contends that without the additional discovery, plaintiff cannot introduce facts to demonstrate that defendants' course of treatment "was medically unacceptable under the circumstances." (ECF No. 33 at 2.)
Plaintiff contends that his pro se complaint is too general, precluding defendants' expert from applying his medical expertise to the "specific facts concerning plaintiff's physical condition and symptoms" throughout plaintiff's medical treatment. (ECF No. 33 at 3.) Plaintiff argues that because Dr. Barnett has not personally examined plaintiff, his opinion lacks relevance. Plaintiff contends that the testimony he seeks from Dr. Barnett would show that defendants repeatedly chose a course of treatment that was medically unacceptable, and would adduce facts to show defendants consciously disregarded a substantial risk of serious harm to plaintiff. (ECF No. 33 at 3.) In his accompanying declaration, plaintiff avers that he is employed as a building porter, working 35 hours a week, and is enrolled in one college course, three units, for which he prepares 6 to 10 hours a week. Plaintiff states he has 12-18 hours a week to work on litigation, including attending law library. Plaintiff admits that when he received the motion for summary judgment, he was spending most of his litigation time working on
Plaintiff provides a list of 23 proposed written questions to Dr. Barnett. (ECF No. 33 at 7-14.) Plaintiff provides ten additional written questions (total) for defendants Lotersztain, Pfile, and Kuersten (ECF No. 33 at 14-15.)
Defendants oppose plaintiff's request, noting that plaintiff waited two months before propounding any discovery, and did not seek to modify the discovery and scheduling order, but waited until four months after discovery closed. Defendants argue that plaintiff provided no factual basis as to why he could not have presented his questions earlier, or how responses to those questions would help his case. Defendants contend that they provided plaintiff with over 800 pages of medical records. In addition, they argue they provided plaintiff with additional medical records when received. In any event, defendants contend plaintiff had the opportunity and time to propound additional follow-up discovery, but failed to do so.
Defendants argue that plaintiff's request to submit written questions to Dr. Barnett should be denied because Dr. Barnett is not a party. In light of plaintiff's in forma pauperis status, defendants argue that delaying the motion for Dr. Barnett's deposition would be futile, as it is unclear whether he has the funds needed to take the deposition of Dr. Barnett. However, if plaintiff does have the funds, defendants suggest the "money would be better spent paying plaintiff's restitution or the court fees in one of plaintiff's multiple cases." (ECF No. 37 at 4.) In any event, defendants ask the court to require plaintiff to show that he can pay the associated deposition fees before placing this matter on hold. (ECF No. 37 at 5.)
In reply, plaintiff contends that defendants' opposition was untimely and therefore should not be considered by the court. Plaintiff denies that he had sufficient time to propound follow up discovery because no discovery request could be served after November 5, 2015. Plaintiff argues that his failure to file a motion to modify the scheduling order is not relevant because his 56(d) motion seeks discovery "specifically tailored to counter material factual assertions made by defendants in support of their motion for summary judgment." (ECF No. 41 at 2.) Plaintiff contends that his detailed statements after each proposed question explains how the answers would preclude summary judgment. Plaintiff claims that the latest medical record provided to plaintiff, by the defendants in discovery, or by the institution, was dated June 12, 2015, but the summary judgment motion included medical records up to March 2016. (ECF No. 41 at 4, 9.)
Plaintiff argues that defendants' concession that he is entitled to depose Dr. Barnett demonstrates that they concede plaintiff has made a proper showing under Rule 56(d). (ECF No. 41 at 4.) Plaintiff states that his theory of the case is that he herniated a lumbar spinal disc on December 4, 2012, and the defendants disregarded, and repeatedly failed to acknowledge his objective symptoms, which were medically unacceptable responses to his condition. Plaintiff claims that defendants' theory of the case is that plaintiff did not suffer from a herniated disc and suffered no physical impairment for the 18 months from admission to CSP-SOL until some later time. (ECF No. 41 at 4, citing ECF No. 30-7 at 13, 15 (Dr. Barnett Decl.).) Plaintiff claims that there are "other people" who witnessed plaintiff's objective symptoms, and plaintiff can testify to what he personally experienced. Plaintiff argues he should not be denied the ability to obtain the medical evidence sought simply because he is indigent, and contends that Dr. Barnett's report is "full of obvious falsehoods," and believes that some of the doctor's conclusions "are either grossly inept or intentionally falsified." (ECF No. 41 at 5, 9.)
Plaintiff contends that defendants are in a "rush to judgment," and offers to proceed if the medical questions proposed to Dr. Barnett "were answered by any doctor." (ECF No. 41 at 6.) Plaintiff asserts he would accept answers by any one of the three defendant doctors. (
Rule 56(d) provides:
Fed. R. Civ. P. 56(d). "A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment."
First, plaintiff's contention that defendants' opposition was untimely is unavailing. Plaintiff filed his motion on May 3, 2016. Under Local Rule 230(1), defendants had 21 days to file an opposition, plus 3 days for mailing under Rule 6 of the Federal Rules of Civil Procedure; thus, their opposition was due on or before May 27, 2016. Defendants timely filed their opposition on May 25, 2016.
Second, plaintiff seeks to reopen discovery to propound further interrogatories to the doctor defendants. However, plaintiff has not demonstrated diligence in seeking the requested discovery. On September 15, 2015, the court issued a discovery and scheduling order, which set the deadline to complete discovery as January 4, 2016. (ECF No. 17.) Plaintiff did not seek to extend the discovery deadline for any purpose. Importantly, plaintiff waited until May of 2016 before seeking postponement of the motion for summary judgment. As justification for his delay, plaintiff claims he could not know what material factual assertions defendants would make in their motion. However, this case pertains to medical care provided at CSP-SOL from September 7, 2012, to February 4, 2015, by Dr. Lotersztain, and whether the remaining doctor defendants should have taken action to obtain additional medical care for plaintiff in early 2014, based on his administrative appeals. Plaintiff was involved in the medical treatment or lack of treatment, and had access to his own medical records, as well as the medical records provided by defendants. Moreover, even if defendants failed to earlier provide plaintiff with more recent medical records, he fails to demonstrate how medical records after June 12, 2015, to March 2016, would impact incidents that took place years before.
Third, with respect to Dr. Barnett, defendants' expert witness, defendants are correct that plaintiff may depose Dr. Barnett at plaintiff's expense. However, plaintiff makes no showing that he has sufficient funds to depose Dr. Barnett, and plaintiff cannot simply question nonparty Dr. Barnett or depose Dr. Barnett at public expense, as the Court explained in its prior order. (ECF No. 27 at 4.) However, if plaintiff can obtain financial assistance to subpoena Dr. Barnett, serve the subpoena on Dr. Barnett, and pay Dr. Barnett's mileage, travel, and expert witness fees, as well as the attendant court reporting fees, the court would postpone consideration of the motion accordingly. Defendants did not provide a projection for all of these costs. Thus, plaintiff was unable to determine whether he could marshal sufficient funds to depose Dr. Barnett.
Therefore, the parties are directed to meet and confer, either by phone or in person, on or before January 17, 2017, so that defense counsel can provide plaintiff with a projection of all the anticipated costs for the deposition of Dr. Barnett: service of process fees to subpoena Dr. Barnett; Dr. Barnett's mileage, travel, and expert witness fees; and court reporting fees. The parties shall discuss whether plaintiff has located a volunteer to cover such costs. If plaintiff can marshal sufficient funds for Dr. Barnett's deposition, and demonstrate proof of funds to defendants' satisfaction, plaintiff may subpoena Dr. Barnett for deposition at a date agreed upon by Dr. Barnett, plaintiff, and defense counsel. Of course, the parties are free to negotiate an alternative method, if appropriate and agreeable to both sides. On or before January 23, 2017, the parties shall file a status report advising whether or not Dr. Barnett will be deposed and if so, when.
In the meantime, plaintiff is relieved of his obligation to file an opposition to defendants' motion for summary judgment until further order of court. However, plaintiff is cautioned that if he cannot marshal the funds necessary to depose Dr. Barnett, the court may order him to file his opposition within fourteen days of any order by the district court adopting the instant findings and recommendations.
Plaintiff filed a motion for leave to file a surreply to defense counsel's declaration filed on July 8, 2016. When a party has raised new arguments or presented new evidence in a reply to an opposition, the court may permit the other party to counter the new arguments or evidence.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for leave to file a surreply (ECF No. 43) is granted;
2. Defendants' declaration in lieu of reply (ECF No. 42) is stricken;
3. The parties are directed to meet and confer, either by phone or in person, concerning the costs associated with Dr. Barnett's deposition, on or before January 17, 2017, as set forth above;
4. On or before January 23, 2017, the parties shall file a joint status report, as set forth above; and
5. Plaintiff's is relieved of his obligation to file an opposition to the pending motion for summary judgment until further order of court.
IT IS RECOMMENDED that:
1. Plaintiff's motion to amend (ECF No. 34) be denied; and
2. Plaintiff's motion under Rule 56(d) (ECF No. 33) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
