1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 J.L. HOWZE, No. 2:16-cv-1738 JAM AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 A.B. OROZCO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court are plaintiff’s motions to amend the complaint (ECF 19 No. 110), to serve discovery (ECF No. 114), to strike defendants’ opposition (ECF No. 119), for 20 partial summary judgment (ECF No. 117), and for judicial notice and subpoena (ECF No. 125). 21 Also before the court are defendants’ motions to deny plaintiff’s summary-judgment motion as 22 premature (ECF No. 115), set a dispositive motions deadline (ECF Nos. 115, 132), and extend the 23 time for responding to plaintiff’s motion for summary judgment (ECF Nos. 120, 132). 24 I. Motion to Amend 25 Plaintiff has filed a motion to amend the complaint to request damages for emotional 26 distress, mental anguish, and pain and suffering. ECF No. 110. Defendants Grout, Neuschmid, 27 and Orozco filed an opposition to the motion (ECF No. 112), which defendant Sahota later joined 28 //// 1 (ECF No. 113).1 Defendants oppose the motion on the grounds that plaintiff unnecessarily 2 delayed seeking amendment and that amendment would prejudice defendants. ECF No. 112. 3 They argue that if plaintiff is allowed to amend, the resolution of this case will be unduly delayed 4 because they would need to re-open discovery in order to re-depose plaintiff regarding emotional 5 distress damages, which he stated he was not seeking during his deposition. ECF No. 112 at 2. 6 In reply, plaintiff filed a motion to strike the oppositions as “an insufficient defense.” ECF No. 7 119. Defendants’ Grout, Neuschmid, and Orozco oppose the motion to strike on the grounds that 8 plaintiff identifies no grounds for striking their opposition and that the opposition was timely 9 filed. ECF No. 123. 10 As an initial matter, defendants’ oppositions are untimely. Local Rule 230(l) provides that 11 oppositions are due no more than twenty-one days after the date of service of the motion. 12 Plaintiff’s motion to amend and proposed amended complaint are accompanied by a certificate of 13 service that indicates they were served on November 4, 2021. ECF No. 111 at 19. Any 14 opposition was therefore due no later than December 2, 2021.2 See Fed. R. Civ. P. 6(d) (where 15 period of time to respond is based on date of service and service is made by mail, an additional 16 three days is added after period would otherwise expire). However, defendants’ oppositions were 17 not filed until December 6 and 8, 2021. ECF Nos. 112, 113. Regardless, due to the brief nature 18 of the untimeliness, the oppositions will be considered and plaintiff’s motion to strike will be 19 denied for the reasons that follow. 20 Plaintiff’s proposed amended complaint is simply a copy of his first amended complaint 21 with the first page and last two pages replaced.3 Compare ECF No. 11 at 1-18 with ECF No. 111. 22 As a result, the proposed amended complaint includes the fraud and due process claims that were 23 previously dismissed without leave to amend. See ECF Nos. 14, 23. This pleading is 24 1 Defendants Grout, Neuschmid, and Orozco are represented by separate counsel from defendant 25 Sahota. 26 2 Due to court holidays and the following weekend, twenty-one days would have expired on November 29, 2021, at which point an additional three days was added. 27 3 The first page has been modified to reflect plaintiff’s current address and that it is a proposed second amended complaint, ECF No. 111 at 1, while the last two pages contain the modified 28 request for relief and updated signature and verification, id. at 17-18. 1 inconsistent with plaintiff’s representation that he seeks only to amend his request for relief. The 2 proposed amended complaint is improper insofar as it restores dismissed claims, and it is also an 3 improper vehicle for requesting damages for emotional distress, mental anguish, and pain and 4 suffering. 5 As for plaintiff’s request to amend his request for relief, the undersigned will recommend 6 the motion be denied. In considering whether to grant leave to amend, “[t]he court should freely 7 give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). 8 In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated 9 failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the 10 amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’ 11 12 Foman v. Davis, 371 U.S. 178, 182 (1962). Of the factors the district court must consider, 13 “prejudice to the opposing party . . . carries the greatest weight.” Eminence Capital, LLC v. 14 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citation omitted). “Absent prejudice, or a 15 strong showing of any of the remaining Foman factors, there is a presumption under Rule 15(a) in 16 favor of granting leave to amend.” Id. (citation omitted). 17 In the first amended complaint, plaintiff stated that he was seeking compensatory, 18 exemplary, and special damages against defendants. ECF No. 11 at 17. The motion to amend 19 states that during his deposition “it was (inadvertently) discovered by [plaintiff] that he is eligible 20 for damages—to wit: for emotional distress, mental anguish, and pain & suffering—beyond those 21 catalogued by him in the [first amended complaint],” and he seeks to amend the complaint 22 accordingly. ECF No. 110 at 1. However, damages for emotional distress, mental anguish, and 23 pain and suffering all fall within the category of compensatory damages. See Borunda v. 24 Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988) (“The victim of the constitutional deprivation is 25 entitled to compensation for economic harm, pain and suffering, and mental and emotional 26 distress that results from the violations.” (citing Carey v. Piphus, 435 U.S. 247, 257-64 (1978))). 27 As a general matter, amendment to merely identify the breakdown of the categories of 28 compensatory damages sought is thus unnecessary. 1 In this case, amendment is also inappropriate because of the procedural posture and 2 plaintiff’s previous sworn statements regarding damages. Defendants have submitted an excerpt 3 of plaintiff’s deposition transcript in which he states that he is not seeking compensatory damages 4 for mental or emotional distress. ECF No. 112-1 at 6. To the extent plaintiff now seeks to retract 5 that testimony and pursue damages he was not previously seeking, the motion should also be 6 denied. If plaintiff were permitted to amend the complaint to allege damages for mental and 7 emotional distress, amendment at this late stage would unfairly prejudice defendants because they 8 would be required to seek to re-open discovery4 on an issue that plaintiff explicitly disclaimed. 9 See Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 J.L. HOWZE, No. 2:16-cv-1738 JAM AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 A.B. OROZCO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court are plaintiff’s motions to amend the complaint (ECF 19 No. 110), to serve discovery (ECF No. 114), to strike defendants’ opposition (ECF No. 119), for 20 partial summary judgment (ECF No. 117), and for judicial notice and subpoena (ECF No. 125). 21 Also before the court are defendants’ motions to deny plaintiff’s summary-judgment motion as 22 premature (ECF No. 115), set a dispositive motions deadline (ECF Nos. 115, 132), and extend the 23 time for responding to plaintiff’s motion for summary judgment (ECF Nos. 120, 132). 24 I. Motion to Amend 25 Plaintiff has filed a motion to amend the complaint to request damages for emotional 26 distress, mental anguish, and pain and suffering. ECF No. 110. Defendants Grout, Neuschmid, 27 and Orozco filed an opposition to the motion (ECF No. 112), which defendant Sahota later joined 28 //// 1 (ECF No. 113).1 Defendants oppose the motion on the grounds that plaintiff unnecessarily 2 delayed seeking amendment and that amendment would prejudice defendants. ECF No. 112. 3 They argue that if plaintiff is allowed to amend, the resolution of this case will be unduly delayed 4 because they would need to re-open discovery in order to re-depose plaintiff regarding emotional 5 distress damages, which he stated he was not seeking during his deposition. ECF No. 112 at 2. 6 In reply, plaintiff filed a motion to strike the oppositions as “an insufficient defense.” ECF No. 7 119. Defendants’ Grout, Neuschmid, and Orozco oppose the motion to strike on the grounds that 8 plaintiff identifies no grounds for striking their opposition and that the opposition was timely 9 filed. ECF No. 123. 10 As an initial matter, defendants’ oppositions are untimely. Local Rule 230(l) provides that 11 oppositions are due no more than twenty-one days after the date of service of the motion. 12 Plaintiff’s motion to amend and proposed amended complaint are accompanied by a certificate of 13 service that indicates they were served on November 4, 2021. ECF No. 111 at 19. Any 14 opposition was therefore due no later than December 2, 2021.2 See Fed. R. Civ. P. 6(d) (where 15 period of time to respond is based on date of service and service is made by mail, an additional 16 three days is added after period would otherwise expire). However, defendants’ oppositions were 17 not filed until December 6 and 8, 2021. ECF Nos. 112, 113. Regardless, due to the brief nature 18 of the untimeliness, the oppositions will be considered and plaintiff’s motion to strike will be 19 denied for the reasons that follow. 20 Plaintiff’s proposed amended complaint is simply a copy of his first amended complaint 21 with the first page and last two pages replaced.3 Compare ECF No. 11 at 1-18 with ECF No. 111. 22 As a result, the proposed amended complaint includes the fraud and due process claims that were 23 previously dismissed without leave to amend. See ECF Nos. 14, 23. This pleading is 24 1 Defendants Grout, Neuschmid, and Orozco are represented by separate counsel from defendant 25 Sahota. 26 2 Due to court holidays and the following weekend, twenty-one days would have expired on November 29, 2021, at which point an additional three days was added. 27 3 The first page has been modified to reflect plaintiff’s current address and that it is a proposed second amended complaint, ECF No. 111 at 1, while the last two pages contain the modified 28 request for relief and updated signature and verification, id. at 17-18. 1 inconsistent with plaintiff’s representation that he seeks only to amend his request for relief. The 2 proposed amended complaint is improper insofar as it restores dismissed claims, and it is also an 3 improper vehicle for requesting damages for emotional distress, mental anguish, and pain and 4 suffering. 5 As for plaintiff’s request to amend his request for relief, the undersigned will recommend 6 the motion be denied. In considering whether to grant leave to amend, “[t]he court should freely 7 give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). 8 In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated 9 failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the 10 amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’ 11 12 Foman v. Davis, 371 U.S. 178, 182 (1962). Of the factors the district court must consider, 13 “prejudice to the opposing party . . . carries the greatest weight.” Eminence Capital, LLC v. 14 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citation omitted). “Absent prejudice, or a 15 strong showing of any of the remaining Foman factors, there is a presumption under Rule 15(a) in 16 favor of granting leave to amend.” Id. (citation omitted). 17 In the first amended complaint, plaintiff stated that he was seeking compensatory, 18 exemplary, and special damages against defendants. ECF No. 11 at 17. The motion to amend 19 states that during his deposition “it was (inadvertently) discovered by [plaintiff] that he is eligible 20 for damages—to wit: for emotional distress, mental anguish, and pain & suffering—beyond those 21 catalogued by him in the [first amended complaint],” and he seeks to amend the complaint 22 accordingly. ECF No. 110 at 1. However, damages for emotional distress, mental anguish, and 23 pain and suffering all fall within the category of compensatory damages. See Borunda v. 24 Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988) (“The victim of the constitutional deprivation is 25 entitled to compensation for economic harm, pain and suffering, and mental and emotional 26 distress that results from the violations.” (citing Carey v. Piphus, 435 U.S. 247, 257-64 (1978))). 27 As a general matter, amendment to merely identify the breakdown of the categories of 28 compensatory damages sought is thus unnecessary. 1 In this case, amendment is also inappropriate because of the procedural posture and 2 plaintiff’s previous sworn statements regarding damages. Defendants have submitted an excerpt 3 of plaintiff’s deposition transcript in which he states that he is not seeking compensatory damages 4 for mental or emotional distress. ECF No. 112-1 at 6. To the extent plaintiff now seeks to retract 5 that testimony and pursue damages he was not previously seeking, the motion should also be 6 denied. If plaintiff were permitted to amend the complaint to allege damages for mental and 7 emotional distress, amendment at this late stage would unfairly prejudice defendants because they 8 would be required to seek to re-open discovery4 on an issue that plaintiff explicitly disclaimed. 9 See Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999) (“A need to 10 reopen discovery and therefore delay the proceedings supports a district court’s finding of 11 prejudice from a delayed motion to amend the complaint.” (citation omitted)). Discovery in this 12 case has already taken up an inordinate amount of time, both for reasons outside the parties’ 13 control and because of various discovery disputes, including plaintiff’s unjustified initial refusal 14 to be deposed. As defendants have pointed out, all that is left for the court at this time is to re-set 15 the dispositive motions deadline, and re-opening discovery would delay progress toward the 16 resolution of this 2016 case. The undersigned agrees that considerations of prejudice and delay 17 weigh against amendment. 18 For all theses reasons, justice does not require amendment and plaintiff’s motion should 19 be denied. 20 II. Motion to Serve Discovery 21 Plaintiff has filed a motion requesting leave to serve interrogatories and requests for 22 production. ECF No. 114. Defendants oppose the motion. ECF Nos. 116, 118. The deadline for 23 serving written discovery requests expired on April 20, 2020. ECF No. 47 at 5. 24 In considering whether to grant a motion to amend the scheduling order and re-open
25 4 Discovery in this case largely closed on June 19, 2020. ECF No. 47 at 5. Due to the COVID- 26 19 pandemic, the deadlines for taking plaintiff’s deposition and filing any necessary motions to compel were twice extended. ECF Nos. 57, 74. Plaintiff then refused to participate in his 27 deposition, leading defendants to file a motion to compel. ECF No. 95. The motion to compel was granted, ECF No. 109, and plaintiff’s deposition was taken on October 26, 2021, ECF No. 28 112-1 at 4, thus bringing discovery to a close. 1 discovery, the court is to consider: 2 “1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the 3 moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need 4 for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to 5 relevant evidence.” 6 City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (quoting United 7 States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995)). It is 8 “significant” when a party is seeking to re-open discovery rather than extend the discovery 9 deadline. W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990). “The 10 difference [between the two types of requests] is considerable” because “a request for an 11 extension acknowledges the importance of a deadline, [while] a retroactive request suggests that 12 the party paid no attention at all to the deadline.” Id. 13 While trial has not yet been set in this case, defendants’ opposition to the request, the fact 14 that this case has been pending since July 2016, and the other factors for consideration weigh 15 heavily against the re-opening of discovery. Plaintiff’s request comes over nineteen months after 16 the deadline for propounding written discovery, and he provides no explanation or justification as 17 to why he did not pursue the discovery sought prior to the deadline or for why discovery should 18 be re-opened. There is no evidence that plaintiff has been diligent in his efforts to efforts to 19 obtain the requested discovery. Furthermore, the court is ready to re-set the deadline for 20 dispositive motions, and re-opening discovery at this late stage would only serve to further delay 21 resolution of this case and prejudice defendants. The request will therefore be denied. 22 III. Motion to Deny Plaintiff’s Motion for Summary Judgment 23 Defendants Grout, Neuschmid, and Orozco have filed a motion requesting that the court 24 deny plaintiff’s January 1, 2021 motion for summary judgment (ECF No. 93) as premature. ECF 25 No. 115. Shortly after it was filed, the court vacated the January 1, 2021 motion on the ground 26 that it was premature. ECF No. 94. Defendants’ motion will therefore be denied as moot. 27 IV. Motions for Extension of Time and to Set a Dispositive Motions Deadline 28 Defendants have filed motions requesting that the court set a deadline for dispositive 1 motions and that the deadline to respond to plaintiff’s motion for summary judgment be extended 2 to the dispositive motions deadline so that they may file a combined motion and response. ECF 3 Nos. 115, 120, 132. In their latest motion, defendants propose a deadline of May 9, 2022. Good 4 cause appearing, the motions will be granted. 5 V. Request for Judicial Notice and Motion for Subpoena 6 Plaintiff has filed a request for judicial notice and motion for an order directing the Clerk 7 of the Court to issue a subpoena. ECF No. 125. The request for judicial notice appears to relate 8 to plaintiff’s motion for summary judgment, though it was not filed until approximately one 9 month later. Because it appears intended to support the motion for summary judgment, the court 10 will consider the request for judicial notice at the same time it addresses the motion for summary 11 judgment. 12 With respect to the request for a subpoena, it appears that plaintiff is seeking to subpoena 13 the same documents he indicated he was seeking to obtain by re-opening discovery and that he is 14 requesting that the court order the U.S. Marshal to serve the subpoena on the custodian of records 15 at Folsom State Prison. Id. at 21-22. However, plaintiff has not demonstrated that the requested 16 documents are relevant, nor has he shown that he could not have obtained these documents from 17 defendants, had he requested them during the discovery period. As already noted, the time for 18 propounding discovery requests has long since closed, and the court will not permit plaintiff to 19 get around this deadline through the use of subpoenas. The motion for service of a subpoena will 20 therefore be denied. 21 CONCLUSION 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s motion for leave to serve discovery requests (ECF No. 114) is DENIED. 24 2. Plaintiff’s motion to strike (ECF No. 119) is DENIED. 25 3. Defendants’ motion to deny plaintiff’s motion for summary judgment as premature 26 (ECF No. 115) is DENIED as moot. 27 4. Plaintiff’s motion for service of a subpoena (ECF No. 125 at 21-22) is DENIED. 28 5. Defendants’ motions to set a dispositive motions deadline and to extend their time to 1 || file a response to plaintiff's motion for summary judgment (ECF Nos. 115, 120, 132) are 2 | GRANTED. Defendants shall have until May 9, 2022, to file any motions for summary judgment 3 || and to respond to plaintiff's motion for summary judgment. 4 IT IS FURTHER RECOMMENDED that: 5 1. Plaintiff's motion to amend (ECF No. 110) be DENIED. 6 2. The Clerk of the Court be directed to strike the proposed second amended complaint 7 || (ECF No. 111) from the record. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 || after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 || objections shall be served and filed within fourteen days after service of the objections. The 14 | parties are advised that failure to file objections within the specified time may waive the right to 15 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | DATED: March 24, 2022 ~ 17 Atlun—Clone ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28