1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Albert Chaffin, No. CV-22-02034-PHX-DWL (MTM) 10 Plaintiff, 11 v. ORDER 12 Centurion of Arizona, LLC, et al., 13 Defendants.
14 15 Plaintiff Albert Chaffin, who is represented by counsel, brought this civil rights 16 action pursuant to 42 U.S.C. § 1983. Plaintiff’s claims stem from his time as a prisoner in 17 the Arizona Department of Corrections and Rehabilitation (“ADCRR”). 18 In Count Two of his operative pleading, the First Amended Complaint (“FAC”), 19 Plaintiff asserts a § 1983 claim premised on deliberate indifference to medical needs, in 20 violation of the Eighth Amendment, against Nurse Practitioners Michael Brathwaite and 21 Diane Curd (together, “Defendants”). (Doc. 1-3 at 22 ¶¶ 58-64.) Defendants have now 22 moved for summary judgment on Count Two. (Doc. 53.) For the reasons that follow, the 23 motion is granted. 24 DISCUSSION 25 I. Count Two 26 The summary judgment analysis is complicated by the fact that the parties disagree 27 about the nature and scope of Count Two. Defendants argue that Count Two “is focused 28 only on their alleged retaliation of moving Plaintiff to punitive housing, which occurred on 1 August 7, 2020, and not before,” and then identify various reasons why they are entitled to 2 summary judgment on any such claim. (Doc. 53 at 9-10.) 3 In response, Plaintiff makes no effort to show that Defendants could be held 4 responsible for causing him to be moved to punitive housing on August 7, 2020. (Doc. 5 56.) Instead, Plaintiff argues that Count Two is actually premised on Defendants’ 6 interference with his access to a wheelchair, which occurred on July 31, 2020, and caused 7 him to experience unnecessary pain: “Defendants Curd and Brathwaite are not entitled to 8 summary judgment on Plaintiff’s § 1983 deliberate indifference claim because a reasonable 9 jury could find that their revocation and denial of Plaintiff’s wheelchair was medically 10 unacceptable and resulted in the ‘unnecessary and wanton infliction of pain.’” (Id. at 8.) 11 Plaintiff continues: “This unnecessary increase in Plaintiff’s pain demonstrates the harm 12 resulting from Defendants’ indifference.” (Id. at 13.) As proof of his unnecessary pain, 13 Plaintiff cites documents dated August 3, 4, and 6, 2020. (Id. at 12-13.) Plaintiff also 14 contends that his “uncontrolled pain” was one cause of his subsequent stroke. (Id. at 13.) 15 In reply, Defendants dispute Plaintiff’s characterization of Count Two and contend 16 that “[a]rguing for the first time in response to a summary judgment motion a basis for a 17 claim that is clearly not even contained in the claim itself cannot be considered as a basis 18 to overcome summary judgment on the actual claim, as framed by Plaintiff.” (Doc. 63 at 19 3.) 20 After reviewing the parties’ briefing, the Court issued an order in which it agreed 21 with Defendants’ interpretation of Count Two but offered Plaintiff an opportunity to 22 provide further briefing on why his claim of wheelchair-access interference should 23 nevertheless be considered part of Count Two. (Doc. 69.) Plaintiff has now filed a 24 responsive brief. (Doc. 70.) As explained below, the Court concludes that Plaintiff cannot 25 premise Count Two on a claim of wheelchair-access interference. 26 … 27 … 28 … 1 A. Plaintiff’s Earlier Characterizations Of Count Two 2 1. The FAC 3 On October 28, 2022, Plaintiff filed the FAC. (Doc. 1-3 at 16-23.) In the FAC, 4 Plaintiff asserts (1) a state-law negligence claim against Centurion of Arizona, LLC 5 (“Centurion”); (2) an Eighth Amendment-based § 1983 claim, based on deliberate 6 indifference to serious medical needs, against Defendants;1 and (3) an Eighth Amendment- 7 based Monell claim against Centurion. (Doc. 1-3 at 16-23.) 8 The relevant factual allegations in the FAC are as follows. In March 2020, Plaintiff 9 was assessed with chronic back pain and post-traumatic stress disorder when he was 10 admitted to the ADCRR. (Id. at 19 ¶ 32.) On July 6, 2020, Plaintiff was assessed with 11 atypical chest pain and, one month later, was found to have essential hypertension. (Id. at 12 19 ¶ 34.) Plaintiff was then approved for a wheelchair and other assistance for his chronic 13 back pain. (Id. at 20 ¶ 36.) In July 2020, Plaintiff was evaluated for physical therapy and 14 the physical therapist noted that Plaintiff had difficulty walking long distances, with 15 significant spinal findings noted. (Id. at 20 ¶ 37.) On July 29, 2020, Plaintiff was unable 16 to stand for his weight and his blood pressure was high. (Id. at 20 ¶ 38.) On July 30, 2020, 17 radiology findings reflected a concern for an acute fracture. (Id. at 20 ¶ 39.) On July 31, 18 2020, Plaintiff was accused and found guilty of false reporting, but those accusations were 19 in retaliation for Plaintiff seeking medical care and accommodations for back pain and 20 related medical issues. (Id. at 20 ¶¶ 40, 44.) Medical records revealed that ADCRR 21 employees talked to a “physician” in support of the disciplinary charge, even though no 22 physician had recently seen or evaluated Plaintiff. (Id. at 20 ¶¶ 41-42.) Plaintiff was placed 23 in “punitive detention” following this retaliatory disciplinary ticket. (Id. at 20 ¶ 45.) While 24 in punitive detention, Plaintiff suffered a cerebrovascular accident, but his emergent need 25 for medical care was ignored for days until he was finally transferred to Yuma Regional 26 Medical Center, where it was discovered he had suffered a stroke. (Id. at 20-21 ¶¶ 45-48.) 27 28 1 Hearing Officer Steven M. Miller and “Doe Physician” were also named as Defendants in Count Two but they have since been dismissed. (Docs. 26, 29.) 1 Due to the delay in care, Plaintiff was outside the window for certain interventions and 2 suffered permanent injuries. (Id. at 21 ¶ 49-50.) 3 In Count Two of the FAC, Plaintiff incorporates by reference all of these allegations 4 and then asserts that Defendants “violated [his] constitutional rights . . . by their individual 5 and collective indifference to [his] serious medical needs.” (Id. at 22 ¶¶ 58-59.) The 6 remaining allegations in Count Two are as follows: 7 Specifically, acting individually and collectively, these Defendants retaliated 8 against [Plaintiff] for seeking treatment for his serious medical needs. Plaintiff is informed and believes that [Plaintiff] was moved to punitive 9 housing in retaliation for presenting to prison officials with a serious medical 10 need. Punitive retaliation for seeking medical care is a violation of the clearly established constitutional right to seek medical care for serious medical 11 needs. The individual defendants knew, or should have understood, that their 12 acts or failure to act violated [Plaintiff’s] constitutional right. As a result of the violations set forth here, Plaintiff . . . suffered serious and permanent 13 injuries requiring ongoing medical care and treatment. 14 (Id. at 22 ¶¶ 60-64.) 15 As this summary shows, the FAC does not contain any mention of the denial of a 16 wheelchair. Additionally, the FAC “[s]pecifically” identifies one, and only one, act by 17 Defendants as providing the foundation for Count Two—causing Plaintiff to be “moved to 18 punitive housing in retaliation for presenting to prison officials with a serious medical 19 need.” Finally, the only injury alleged in Count Two is “serious and permanent injuries 20 requiring ongoing medical care and treatment.” There is not, in contrast, any allegation 21 that Plaintiff suffered the injury of unnecessary pain associated with being denied access 22 to a wheelchair. 23 2. The Rule 26(f) Report 24 On January 13, 2023, the parties filed the Rule 26(f) report. (Doc. 13.) Like the 25 FAC, the Rule 26(f) report contains no mention of wheelchair-access interference. Instead, 26 in the portion of the Rule 26(f) report requiring him to identify his “Statement of the Case 27 (including principal factual and legal disputes in the matter),” Plaintiff again focused only 28 on Defendants’ efforts to move him into “punitive detention” and identified his only 1 injuries as the injuries arising from the lack of timely medical care following his stroke: 2 Despite Mr. Chaffin’s documented history of back pain confirmed with 3 objective radiological evidence, on July 31, 2020, Mr. Chaffin was accused of ‘false reporting’ for seeking medical care and accommodations for his 4 back pain and related medical issues. Security documents indicate that one 5 or more ADC employees talked to a physician (named in this action as Doe Physician), in support of the disciplinary charge. Reference to Mr. Chaffin’s 6 medical record at the time indicates that Mr. Chaffin had not recently been 7 seen or evaluated by a physician. Mr. Chaffin’s only providers were nurse practitioners NP Brathwaite and NP Curd. In prison, mid-level providers 8 often encourage inmates to call them “Doctor,” although they do not have that qualification. Plaintiff is informed and believes that the finding of guilt 9 was made in retaliation for Mr. Chaffin being a “problem” inmate because 10 of his multiple medical and mental health conditions. During Mr. Chaffin’s punitive detention within the prison, he suffered a cerebrovascular accident 11 (CVA). Because Mr. Chaffin’s medical complaints were not being taken 12 seriously, his emergent need for medical care was ignored. Although Mr. Chaffin continued to have signs and symptoms suggestive of a CVA, medical 13 staff initially denied, and then ultimately delayed, his transfer to Yuma 14 Regional Medical Center (YRMC). On or about August 10, 2020, Mr. Chaffin was finally transferred to YRMC for acute care where he was found 15 to have had an acute stroke. Because of the delay accessing the appropriate 16 level of care, Mr. Chaffin was outside the window for TPA or for additional interventions. As a result, Mr. Chaffin suffered injuries, some permanent, 17 requiring ongoing care and treatment. 18 (Id. at 3-4.) 19 3. The Interrogatory Response 20 On August 24, 2023, Defendants propounded their first set of interrogatories to 21 Plaintiff. (Doc. 54-1 at 2.) In Interrogatory No. 4, Defendants asked Plaintiff to “[d]escribe 22 in detail every element of your alleged injuries and damages arising out of the incidents 23 and/or treatment (or alleged lack thereof) that are the subject of your operative complaint.” 24 (Id. at 7.) 25 On September 25, 2023, Plaintiff responded as follows: 26 27 On August 3, 2020, at approximately 9:12 a.m., Plaintiff was seen for individual counseling with Psych Associate Jamie Babb. Babb assessed 28 Plaintiff's speech as unremarkable. Plaintiff’s thoughts were assessed as goal directed, logical, coherent, with no evident psychosis and no gross cognitive 1 deficits apparent. Babb assessed Plaintiff as stable and not in acute distress. 2 Plaintiff was able to complete a written health needs request to make his needs known. On August 4, 2020, at 9:31 a.m., a nursing assistant saw 3 Plaintiff and she was able to complete a treatment order for a blood pressure 4 check. Plaintiff had a telemedicine visit with a mental health mid-level provider at 10:51 a.m. The mid-level found Plaintiff to be in no acute distress 5 with normal speech and unremarkable thought process, thought content, and 6 cognitive functioning. 7 A nursing assistant was able to complete a treatment order on August 6, 2020, at 8:52 a.m. LPN Rangel documented that Plaintiff was seen that morning 8 for physical therapy without issues. PA Delp entered no new orders and 9 Plaintiff was to return to his housing. 10 On August 7, 2020, at 1:45 p.m., Plaintiff went to medical for his noon 11 medications. RN Gomez documented that Plaintiff was suffering from altered mental status. Gomez documented that Plaintiff was not oriented to 12 self or place, and that he was confused, disoriented, “sentences are not 13 making sense.” She documented that Plaintiff was not responding appropriately to questions. Although Plaintiff’s urine drug screen was 14 negative, RN Gomez nonetheless concluded that Plaintiff had ingested some substance. 15 16 Plaintiff’s damages began with this nursing encounter and continued through today. During Plaintiff’s encounter with the nurse, Plaintiff suffered 17 confusion and humiliation as his symptoms were ignored and he was falsely 18 accused of taking drugs. Plaintiff knew that something was wrong, but the nurse treated him with contempt. Plaintiff’s damages continued through his 19 confinement to a security cell that substantially deprived him of timely and 20 appropriate care. Although Plaintiff was seen by mental health staff, he was not seen by a provider until August 10, 2020, at approximately 3:00 p.m. 21 During his confinement, Plaintiff suffered significant trauma, pain, fear, confusion, and anxiety due in part to the unwarranted harsh conditions of 22 confinement and the uncertainty as to whether he would survive. 23 Upon his arrival to Yuma Regional Medical Center, Plaintiff was diagnosed 24 with a cerebrovascular accident (CVA), unspecified mechanism and slurred 25 speech. Because of the length of time that had passed since the original CVA, certain treatments were unavailable to Plaintiff. Plaintiff believes that had 26 he been appropriately and timely transported from the prison for care, 27 damage to bis brain would have been mitigated. 28 While at the hospital, Plaintiff suffered with the uncertainty of not knowing how much of his function would return. Plaintiff also suffered frustration at his difficulties in speaking and communicating with the doctors at the 1 hospital. 2 Imaging showed infarction of the left posterior middle cerebral artery (MCA) 3 distribution described as a moderately large area of infarction without 4 hemorrhage. Providers concluded that Plaintiff was outside the window for TPA. Plaintiff’s damages include the additional damage be suffered because 5 of the delay/denial of timely and appropriate care. 6 Suffering from an ischemic stroke resulted in difficulty speaking and 7 difficulty with the activities of daily living. Having to rely on others to assist him with personal care was embarrassing and contributed to feelings of 8 dependence and helplessness. Deficits in communication because of the 9 stroke exacerbated these feelings. 10 Plaintiff was referred for skilled physical therapy to improve functional strength, functional mobility, activity tolerance and endurance to assist in 11 safe discharge. 12 On August 12, 2020, Plaintiff was admitted to Allegiant of Phoenix with 13 speech and language deficits, hyperlipidemia, essential (primary) 14 hypertension, difficulty in walking, sequelae of cerebral infarction, sciatica, muscle weakness, and major depressive disorder. He was discharged 15 September 2, 2020, and returned to the prison where he completed his term of incarceration. Upon release from the prison, Plaintiff has sought medical 16 care from the providers listed in response to a previous interrogatory. 17 Plaintiff has seen improvements in his condition, but he has not fully recovered to his pre-stroke status. 18 19 Plaintiff has incurred medical bills from various providers. Plaintiff has residual deficits that make it difficult for him to work. Plaintiff notices a 20 decrease in his capacity to remember. He has also noticed that he still has 21 speech deficits. Plaintiff believes that he would be in a very different place had he received timely and reasonable care for his stroke. 22 23 (Id. at 7-9, emphasis added.) 24 Although this interrogatory response is 11 paragraphs long and spans several pages, 25 it does not (like the FAC and the Rule 26(f) report) contain any references to wheelchair- 26 access interference and does not identify such interference as a damage-causing event. To 27 the contrary, and as the highlighted text shows, Plaintiff identified the nursing encounter 28 on August 7, 2020 as the incident during which his “damages began”—a representation 1 that is inconsistent with the assertion in Plaintiff’s summary judgment response brief that 2 Count Two is premised on the “unnecessary increase in Plaintiff’s pain” that he 3 experienced between July 31, 2020 and August 6, 2020, which “demonstrates the harm 4 resulting from Defendants’ indifference.” (Doc. 56 at 12-13.) 5 B. Analysis As To The Scope Of Count Two 6 On February 28, 2025, the Court issued an order explaining that it agreed with 7 Defendants’ contention in their summary judgment reply brief that “the theory of liability 8 that Plaintiff seeks to advance in his response to Defendants’ motion—i.e., Defendants 9 engaged in deliberate indifference by revoking and then refusing to reissue the SNO 10 [special needs order] for his wheelchair—is a new theory of liability not properly raised in 11 the FAC.” (Doc. 69 at 4.) However, in the first portion of his supplemental brief filed on 12 March 4, 2025, Plaintiff seems to dispute that determination, arguing that Count Two 13 should be deemed to encompass a wheelchair-access interference claim because Rule 8 14 only requires a short and plain statement of the claim and does not require the articulation 15 of particular facts or legal theories. (Doc. 70 at 2-3.) Plaintiff further argues that because 16 Count Two broadly complains of deliberate indifference to his medical needs that occurred 17 during July and August 2020, and the challenged acts of wheelchair-access interference 18 occurred during that period, “Defendants were on notice that the punitive measures taken 19 on July 31, 2020, were a basis for Plaintiff’s deliberate indifference claim.” (Id.) 20 This argument is unavailing. In Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 21 (9th Cir. 2006), the Ninth Circuit addressed a similar situation. There, the plaintiff made a 22 pre-litigation “request[] that the [defendants] construct an access ramp” to their store. Id. 23 at 965. When that requested went unheeded, the plaintiff “filed a complaint alleging . . . 24 that the [defendants] violated Title III of the ADA by failing to remove architectural 25 barriers.” Id. Following the close of discovery, the defendants moved for summary 26 judgment on the ramp theory. Id. at 966. “[I]n response to the [defendants’] motion for 27 summary judgment, Pickern raised allegations of accessibility violations unrelated to the 28 ramp . . . [including] cross-slope of sidewalks, emergency fire exits, and emergency 1 landings.” Id. The district court declined to consider those allegations on the ground that 2 they “were not contained in the complaint and Pickern had not amended or sought to amend 3 the complaint to include those allegations.” Id. On appeal, the plaintiff attempted—just 4 as Plaintiff attempts to do here—“to justify these new factual allegations as falling within 5 the original complaint under Rule 8’s liberal notice pleading standard.” Id. at 968. The 6 Ninth Circuit disagreed, holding that because “the complaint gave the [defendants] no 7 notice of the specific factual allegations presented for the first time in Pickern’s opposition 8 to summary judgment,” “[t]he district court did not err by holding that Pickern failed to 9 provide the [defendants] with adequate notice of these new allegations.” Id. at 968-69. 10 The parallels between this case and Pickern are apparent. In Pickern, where the 11 complaint alleged that the defendants committed an ADA violation and then specifically 12 identified the factual premise for that claim (i.e., the lack of a ramp), the plaintiff was 13 precluded from attempting to identify, in response to the defendants’ summary judgment 14 motion, new factual premises for his ADA claim (i.e., cross-slope of sidewalks, emergency 15 fire exits, and emergency landings) that were not alleged in the complaint. This was true 16 even though those new factual premises could potentially qualify as ADA violations. Here, 17 similarly, where the FAC alleged that Defendants engaged in deliberate indifference to 18 serious medical needs and then specifically identified the factual premise for that claim 19 (i.e., causing Plaintiff to be moved to punitive housing on August 7, 2020, which resulted 20 in Plaintiff sustaining “serious and permanent injuries requiring ongoing medical care and 21 treatment”), Plaintiff is precluded from attempting to identify, in his response to 22 Defendants’ summary judgment motion, a new factual premise for his deliberate- 23 indifference claim (i.e., the acts of wheelchair-access interference on July 31, 2020, which 24 caused Plaintiff to experience unnecessary pain) not alleged in the FAC. 25 Also instructive is the Ninth Circuit’s decision in Navajo Nation v. United States 26 Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc), which involved a challenge to the 27 use of recycled wastewater to make artificial snow at the Snowbowl ski area. The relevant 28 complaints in Navajo Nation asserted claims under the National Environmental Policy Act 1 of 1969 (“NEPA”) premised on four theories: “(1) the Final Environmental Impact 2 Statement (‘FEIS’) failed to consider a reasonable range of alternatives to the use of 3 recycled wastewater; (2) the FEIS failed to discuss and consider the scientific viewpoint of 4 Dr. Paul Torrence; (3) the FEIS failed adequately to consider the environmental impact of 5 diverting the recycled wastewater from Flagstaff’s regional aquifer; and (4) the FEIS failed 6 adequately to consider the social and cultural impacts of the Snowbowl upgrades on the 7 Hopi people.” Id. at 1079. However, at summary judgment, one set of plaintiffs also 8 argued “that the FEIS failed adequately to consider the risks posed by human ingestion of 9 artificial snow,” even though their “complaint did not include this NEPA claim or the 10 factual allegations upon which the claim rests.” Id. The district court declined to allow 11 the plaintiffs to pursue this claim and the Ninth Circuit affirmed, explaining that “our 12 precedents make clear that where, as here, the complaint does not include the necessary 13 factual allegations to state a claim, raising such claim in a summary judgment motion is 14 insufficient to present the claim to the district court.” Id. at 1080. Here, similarly, the fact 15 that Plaintiff asserted a deliberate indifference claim in the FAC does not give him license 16 to articulate what is essentially a new claim of deliberate indifference, which differs from 17 the specific claim articulated in the FAC and which is based on facts not alleged in the 18 FAC, in response to a summary judgment motion challenging his articulated claim. See 19 also Ward v. Clark Cnty., 285 F. App’x 412, 412-13 (9th Cir. 2008) (where the plaintiff 20 asserted a retaliation claim in her complaint but the complaint “neither mentioned nor 21 alluded to” a particular episode in which she was “involuntarily transferr[ed] to another 22 department in a different location,” the district court “properly found” that she could not 23 premise her retaliation claim on that transfer “for the first time in her opposition to 24 Defendant’s motion for summary judgment”) (citing Pickern, 457 F.3d at 968-69). 25 C. Constructive Amendment 26 In the alternative, Plaintiff argues that even if his wheelchair-access interference 27 claim falls outside the scope of Count Two as pleaded, Count Two was constructively 28 amended to encompass that claim. (Doc. 70 at 3.) According to Plaintiff, a constructive 1 amendment occurred here because “Defendants recognized and understood that the 2 revocation and denial of Plaintiff’s wheelchair was a significant issue underlying his Eighth 3 Amendment claim. Defendants fully explored this issue during discovery, including in the 4 depositions of Plaintiff, Defendants Curd and Brathwaite, and Plaintiff’s expert. When 5 Plaintiff was asked about his understanding of the harm caused by the prison’s medical 6 providers, he expressly referenced the revocation of his wheelchair. In addition, 7 Defendants acknowledged that the revocation of the wheelchair was a basis for Plaintiff’s 8 Eighth Amendment claim in an email between counsel before Defendants filed their 9 motion for summary judgment, although the email incorrectly stated there was ‘no 10 evidence’ that Defendants Curd or Brathwaite took away Plaintiff’s wheelchair. Thus, 11 Defendants were fully aware that the wheelchair revocation was an issue prior to filing 12 their motion for summary judgment, and they were able to fully address the merits of 13 Plaintiff’s claim in their summary judgment briefing.” (Id. at 3-4, citations omitted.) 14 These arguments lack merit. Although Plaintiff cites cases recognizing that “the 15 parties may constructively amend the complaint by agreeing, even implicitly, to litigate 16 fully an issue not raised in the original pleadings,” Stemler v. City of Florence, 126 F.3d 17 856, 872 (6th Cir. 1997), those cases address the possibility of constructive amendment 18 under Rule 15(b)(2), which provides that “[w]hen an issue not raised by the pleadings is 19 tried by the parties’ express or implied consent, it must be treated in all respects as if raised 20 in the pleadings.” Id. (emphasis added). Under Rule 15(b)(2), “[i]mplied consent . . . [is] 21 difficult to establish as it depends on whether the parties recognized that an issue not 22 presented by the pleadings entered the case at trial. If they do not, there is no consent and 23 the amendment cannot be allowed.” 6A Charles Alan Wright, Arthur R. Miller & Mary 24 Kay Kane, Federal Practice and Procedure § 1493 (3d ed. June 2024 update). Here, 25 Defendants did not allow the case to be tried on an issue not raised in the pleadings—this 26 case is still at the pre-trial stage. Crawford v. Gould, 556 F.3d 1162, 1168-69 (9th Cir. 27 1995) (“While Rule 15 allows liberal amendments to the pleadings, no amendment was 28 made in this case. Rule 15(b) allows a court to revise pleadings to conform to the case as 1 it actually was litigated at trial. The present case did not go to trial; it was decided on 2 motions for summary judgment. Therefore, the situation which Rule 15(b) addresses 3 simply did not arise in the present case.”); Ward, 285 F. App’x at 412 (“The case was not 4 tried, so Rule 15(b) is unavailing.”). 5 At any rate, even assuming a constructive amendment is possible at this stage of the 6 case, Defendants did not consent in the manner required for a constructive amendment 7 because they “expressly objected” as soon as Plaintiff attempted to raise his wheelchair- 8 access interference claim in his response to their summary judgment motion. Compare 9 Dream Games of Ariz., Inc. v. PC Onsite, 561 F.2d 983, 995 (9th Cir. 2009) (“If Dream 10 Games had intended to assert a theory of secondary liability, it should have done so either 11 in the original or an amended complaint, following proper procedure. Instead, the original 12 complaint failed to provide ‘fair notice’ to defendants of such liability, and Dream Games 13 failed to amend the complaint under Rule 15(a) to allege that theory. Nor was the issue of 14 secondary liability tried by implied consent. PC Onsite expressly objected to Dream 15 Games’s proposed jury instructions regarding secondary liability.”) with Lone Star Sec. & 16 Video, Inc. v. City of Los Angeles, 584 F.3d 1232, 1235 n.2 (9th Cir. 2009) (“Lone Star 17 first raised its invalid-ordinance claim in its motion for summary judgment. The parties 18 fully argued the merits of the claim, however, and the City did not object to Lone Star’s 19 failure to raise the claim in its complaint. ‘When an issue not raised by the pleadings is 20 tried by the parties’ express or implied consent, it must be treated in all respects as if raised 21 in the pleadings.’”) (citation omitted). 22 Nor did Defendants consent to the introduction of this new claim by participating in 23 depositions in which witnesses were asked questions about wheelchair-related issues. 24 Plaintiff fails to cite any case holding (or even suggesting) that a defendant consents to be 25 subjected to a new, unpleaded claim merely by participating in depositions in which the 26 facts underlying that new, unpleaded claim are discussed. Cf. Rindlisbacher v. Steinway 27 & Sons Inc., 497 F. Supp. 3d 479, 490 (D. Ariz. 2020) (rejecting an “attempt to distinguish 28 Pickern by arguing that the facts at issue were disclosed . . . during discovery” and 1 explaining that “[r]equiring [a defendant] to guess whether facts disclosed during discovery 2 would become the basis of the [plaintiffs’] claims would seriously undermine the ‘fair 3 notice’ requirement in Rule 8”). 4 Finally, the email exchange between counsel does not qualify as consent or support 5 a claim of constructive amendment. In that exchange, defense counsel asked Plaintiff’s 6 counsel to “stipulate to voluntarily dismiss [Defendants] from this case” because “[t]he 7 only count as to them is Count Two . . . [which] is focused on purported retaliation by them 8 as to moving [Plaintiff] to punitive housing” and “[t]here is no evidence that either of these 9 [Defendants] were involved . . . in anything that happened August 7, 2020, or later, which 10 is the date you have confirmed the injuries and damages in this case began.” (Doc. 70-5.) 11 Defense counsel further stated, in the course of asserting that Defendants “did not take 12 away [Plaintiff’s] wheelchair,” that “even if that were a fact issue . . . (we contend there is 13 not), that does not fall within the parameters of the lone claim against them and certainly 14 not within the parameters of causation as to the injuries and damages you have confirmed 15 in discovery.” (Id.) It is difficult to see how an email specifically objecting to any 16 wheelchair-access interference claim, on the ground that such a claim would fall outside 17 the scope of Count Two, could be construed as consent to expanding Count Two to 18 encompass the objected-to claim. 19 D. Motion For Leave To Amend 20 Further alternatively, Plaintiff moves to amend Count Two to encompass his 21 wheelchair-access interference claim, arguing that good cause exists because “[d]ue to 22 Plaintiff’s good faith belief that his Eighth Amendment claim was properly pled, Plaintiff 23 did not seek leave to amend or to modify the corresponding scheduling order deadline at 24 an earlier point in the litigation.” (Doc. 70 at 5.) Plaintiff further contends that parties 25 should be allowed to amend the pleadings “based on information learned through 26 discovery” and that Defendants would not suffer any unfair prejudice from the amendment 27 because they “were aware of this issue and thoroughly explored it during discovery” and 28 “addressed this issue in their summary judgment briefing.” (Id. at 5-7.) 1 As noted in the February 18, 2025 order, because the deadline for amending the 2 pleadings set forth in the scheduling order has expired, Plaintiff’s amendment request is 3 subject to Rule 16(b)(4)’s “good cause” standard, which “primarily considers the diligence 4 of the party seeking the amendment. . . . Although the existence or degree of prejudice to 5 the party opposing the modification might supply additional reasons to deny a motion, the 6 focus of the inquiry is upon the moving party’s reasons for seeking modification. If that 7 party was not diligent, the inquiry should end.” Johnson v. Mammoth Recreations, Inc., 8 975 F.2d 604, 609 (9th Cir. 1992) (citations omitted). 9 Plaintiff was not diligent in seeking amendment. Plaintiff was obviously aware, at 10 the time he filed the FAC, of the fact that his wheelchair was taken from him and whether 11 he suffered any pain as a result. Accordingly, this is not a situation where the amendment 12 request is premised on new information that Plaintiff learned during discovery. See, e.g., 13 In re Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 14 2013) (citing, with approval, the district court’s observation that “[t]he good cause standard 15 typically will not be met where the party seeking to modify the scheduling order has been 16 aware of the facts and theories supporting amendment since the inception of the action”); 17 Agricola Baja Best, S. De. R.L. de C.V. v. Harris Moran Seed Co., 2013 WL 4499118, *2 18 (S.D. Cal. 2013) (“The record here does not reflect reasonable diligence and therefore 19 Plaintiff fails to establish good cause. Plaintiff received [the information at issue] well 20 before the inception of this lawsuit, i.e., years before the scheduling order’s deadline. Thus, 21 Plaintiff knew, or should have known, of the facts underlying the proposed amendments 22 well before the scheduling order deadline to amend.”) (citation omitted).2 23
2 Additionally, even assuming Plaintiff did not learn, until engaging in discovery, that 24 Defendants were the individuals responsible for interfering with his access to a wheelchair, he did not timely move to amend after discovering that information. Fact discovery closed 25 on January 26, 2024 (Doc. 31) and Plaintiff filed his supplemental memorandum containing the amendment request more than a year later, on March 4, 2025 (Doc. 70). 26 “Courts have held that waiting two months after discovering new facts to bring a motion to amend does not constitute diligence under Rule 16.” Sako v. Wells Fargo Bank, Nat’l 27 Ass’n, 2015 WL 5022326, *2 (S.D. Cal. 2015). See also Experexchange, Inc. v. Doculex, Inc., 2009 WL 3837275, *29 (N.D. Cal. 2009) (“Plaintiff . . . waited two months after 28 discovering its allegedly ‘new’ facts to bring its motion to amend, filing the motion only after Defendants’ Summary Judgment was fully briefed. . . . Because the Court finds that 1 Plaintiff also contends that good cause exists because he held a “good faith belief 2 that his Eighth Amendment claim was properly pled.” The Court respectfully disagrees 3 that this belief qualifies as good cause. For all of the reasons stated in earlier portions of 4 this order, it should have been clear to Plaintiff (based on Pickern, Navajo Nation, and 5 basic notions of fair notice) that he could not pursue a claim of deliberate difference that 6 differed from the claim specifically articulated in his complaint and was based on facts not 7 alleged in his complaint. It also should have been clear to Plaintiff that a constructive 8 amendment did not occur simply because some of those facts happened to be mentioned 9 during depositions. It is unfortunate that Plaintiff may have misunderstood those 10 principles, but such a misunderstanding, even if reached in good faith, does not provide the 11 sort of good cause required under Rule 16(b)(4). See, e.g., Double J Investment, LLC v. 12 Automation Control and Info. Sys. Corp., 2014 WL 12729163, *1 (D. Ariz. 2014) (“The 13 more stringent standards for amendment under Rule 16 apply since the Scheduling Order 14 governs amendments to the pleadings. Good cause is shown only when the party seeking 15 modification demonstrates that the pretrial schedule was not met despite the diligence of 16 that party. This standard cannot possibly be met where, as here, a party’s misunderstanding 17 of the procedural rules is the only reason for missing a scheduling deadline.”) (citing 18 Johnson, 975 F.2d at 609); Chancellor v. Pottsgrove School Dist., 501 F. Supp. 2d 695, 19 701-02 (E.D. Pa. 2007) (“[A]ttorney error, which might constitute ‘excusable neglect’ 20 under Rule 6(b), is insufficient to constitute ‘good cause’ under Rule 16(b).”) (citing 21 Johnson, 975 F.2d at 609). And because Plaintiff was not diligent, his amendment request 22 must be denied even assuming it would otherwise not be unfairly prejudicial to Defendants. 23 Johnson, 975 F.2d at 609 (“Although the existence or degree of prejudice to the party 24 opposing the modification might supply additional reasons to deny a motion, . . . [i]f that 25 party was not diligent, the inquiry should end.”).3 26
Plaintiff has not acted diligently, it denied Plaintiff’s request to amend.”) 27 3 The Court also notes that Centurion did not move for summary judgment on 28 Plaintiff’s claims in Counts One and Three of the FAC, so the outcome here does not preclude Plaintiff from seeking relief in this action. 1 II. Merits 2 A. Legal Standard 3 A court must grant summary judgment “if the movant shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 5 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 6 movant bears the initial responsibility of presenting the basis for its motion and identifying 7 those portions of the record, together with affidavits, if any, that it believes demonstrate 8 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 9 If the movant fails to carry its initial burden of production, the nonmovant need not 10 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 11 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 12 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 13 contention is material, i.e., a fact that might affect the outcome of the suit under the 14 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 15 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 17 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 18 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 19 it must “come forward with specific facts showing that there is a genuine issue for trial.” 20 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 21 citation omitted); see Fed. R. Civ. P. 56(c)(1). 22 At summary judgment, the judge’s function is not to weigh the evidence and 23 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 24 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 25 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 26 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 27 … 28 … 1 B. Analysis 2 As noted, Defendants contend that Plaintiff’s claim against them “is focused only 3 on their alleged retaliation of moving Plaintiff to punitive housing, which occurred on 4 August 7, 2020, and not before” and argue that “[t]here is no evidence that these 5 Defendants were involved in those actions.” (Doc. 53 at 9.) Under Celotex, this was 6 sufficient to shift the burden of production to Plaintiff as to the move-to-punitive-housing 7 claim. See, e.g., Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (“When the 8 nonmoving party has the burden of proof at trial, the moving party need only point out that 9 there is an absence of evidence to support the nonmoving party’s case.”) (internal quotation 10 marks and citations omitted); 2 Gensler, Federal Rules of Civil Procedure, Rules and 11 Commentary, Rule 56 (2024) (“[A]ll courts agree—and this was the critical point of 12 Celotex—that the moving party’s only burden is to address the existing proof record and 13 in some measure identify some hole in that proof. The moving party need go no further, 14 and in particular is not obligated to submit new proof showing that there is nothing missing 15 that could fill that hole.”). 16 In response, Plaintiff makes no effort to show that Defendants were involved in his 17 move to punitive housing on August 7, 2020—instead, he contends that Defendants 18 engaged in deliberate indifference by denying him the use of a wheelchair beginning on 19 July 31, 2020, which “caused him to experience elevated blood pressure, episodes of chest 20 pain, and increased anxiety, and it was likely a trigger for the stroke he suffered on August 21 7, 2020.” (Doc. 56 at 8-13.) But as discussed in Part I above, that claim is not properly 22 part of this case. And because Plaintiff made no effort to produce evidence in support of 23 his move-to-punitive-housing claim, Defendants are entitled to summary judgment on that 24 claim under Celotex. 25 … 26 … 27 … 28 … 1| ITIS ORDERED: 2 1. The reference to the Magistrate Judge is withdrawn as to Defendants’ motion for summary judgment (Doc. 53). 4 2. Defendants’ motion for summary judgment (Doc. 53) is granted. 5 3. Counsel for Plaintiff and Centurion shall confer (among themselves and with 6| their respective clients and witnesses) and then, by March 31, 2025, file a joint notice 7 | indicating an estimated length of trial. In the joint notice, the parties shall also propose at 8 | least three dates on which they and their witnesses will be available to begin trial in or after September 2025. 10 Dated this 17th day of March, 2025. 11 12 im a 13 } t _ Dominic W. Lanza 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28