Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. §1983. Plaintiff has filed several motions which are pending before the court. PROCEDURAL BACKGROUND
This action is proceeding on claims raised in plaintiff's third amended complaint, filed July 14, 2005, against defendants Mercy Hospital of Folsom (Mercy) and California Department of Corrections and Rehabilitation (CDCR) Correctional Officers Sherbin and Lebeck (Sherbin and Lebeck). By separate orders, summary judgment was entered in favor of Mercy and denied to Sherbin and Lebeck. See Orders filed October 26, 2006 (Mercy) and November 1, 2006 (Sherbin and Lebeck).
On November 21, 2006, plaintiff filed a notice of interlocutory appeal from several orders in this action. On November 29, 2006, defendants Sherbin and Lebeck filed an interlocutory appeal from the order denying summary judgment on the ground of qualified immunity. By order filed December 14, 2006, this action was stayed pending resolution of those interlocutory appeals, and by order filed January 31, 2007, plaintiff was directed not to file any further documents in this action until after resolution of defendants' interlocutory appeal.*fn1 By order filed June 23, 2008, the United States Court of Appeals for the Ninth Circuit resolved the interlocutory appeal filed by defendants Lebeck and Sherbin, affirming in part and vacating in part the denial of summary judgment, and remanding the matter for further consideration of the defense of qualified immunity.*fn2
Following the district court's order directing entry of judgment for Mercy Hospital pursuant to Fed. R. Civ. P. 54(b), see Order filed May 7, 2008, plaintiff appealed the order granting summary judgment to Mercy Hospital. On June 23, 2010, the United States Court of Appeals for the Ninth Circuit issued an order affirming in part and vacating in part the grant of summary judgment in favor of Mercy. The court of appeals affirmed the grant of summary judgment in favor of Mercy on plaintiff's claim that the decision to transfer plaintiff to another hospital to receive more specialized care violated his rights under the Eighth Amendment. See Order filed June 23, 2010 at 2. The court of appeals vacated the grant of summary judgment to Mercy on a claim under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (EMTALA) and remanded the matter to this court to reopen discovery on that claim. Id. at 4. The court also vacated the dismissal of plaintiff's state law medical malpractice and negligence claims "'to permit the district court once again to determine whether to exercise its supplemental jurisdiction in light of the proceedings on remand.'" Id. at 5 (quoting Fredenburg v. County of Contra Costa Dep't of Health Servs., 172 F.3d 1176, 1183 (9th Cir. 1999). The court of appeals affirmed the denial of plaintiff's motion to amend the complaint to substitute the doctor and nurse who treated him at Mercy for Doe defendants, and the court authorized plaintiff to renew his request for appointment of a medical expert witness. Id. at 5-6.
By order filed July 2, 2010, this court directed the parties to file briefs addressing whether the court should exercise supplemental jurisdiction over plaintiff's state law claims. On July 19, 2010, plaintiff and defendants Sherbin and Lebeck filed responses to that order.*fn3 Mercy did not file a response to the order. appealed the order denying their motion for summary judgment. By order filed July 21, 2010, this court held that this action would proceed on plaintiff's state law medical malpractice and negligence claims in addition to the remaining federal claim under the EMTALA. Order filed July 21, 2010 at 2.
PLAINTIFF'S MOTIONS I. Motion for Mediation
On August 2, 2010, plaintiff filed a document styled "Informal/of Formal Inquiry into Court Mediation." In that document, plaintiff inquires whether it is appropriate to set this matter for mediation. On August 5, 2010, defendant Mercy filed a response to plaintiff's inquiry in which it states its opposition to setting this matter for mediation. Plaintiff filed a reply brief on August 17, 2010. After review of the papers filed by the parties, and good cause appearing, this matter will not be set for mediation at this time.
II. Plaintiff's Motion to Amend
On August 23, 2010, plaintiff filed a motion for leave to file a fourth amended complaint. Plaintiff seeks to amend his complaint to substitute Dr. Nugent, Dr. Todd, and Correctional Officer Bristow in place of three Doe defendants named in the third amended complaint.
Leave to amend a complaint should be freely granted "when justice so requires." Fed. R. Civ. P. 15(a)(2). However, when a plaintiff has already been granted leave to amend the court's "discretion in deciding subsequent motions to amend is 'particularly broad.'" Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002) (quoting Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879 (9th Cir. 1999). "Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint." Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
A. Correctional Officer Bristow
Plaintiff's proposed amended complaint adds Correctional Officer Bristow to the charging allegations and claims raised against defendants Sherbin and Lebeck in the third amended complaint. Specifically, plaintiff alleges that defendants Sherbin*fn4 and Lebeck and Correctional Officer Bristow ordered him to pick up dinner trays unsupervised by officers because Sherbin and Lebeck were leaving their posts. Plaintiff alleges that he told all three officers that this was contrary to established policies and procedures and that it was unsafe. Plaintiff alleges that defendants Sherbin and Bristow failed to escort him while he was picking up trays, and that his face was slashed from "lip to almost ear" by two inmates who called him to a tray port that had been left open. Proposed Fourth Amended Complaint, filed April 23, 2010, at 4. Plaintiff alleges that he approached Correctional Officer Bristow and told him "of a situation at cell 211, and that plaintiff had believed he could defuse it, but he wanted to let one of his supervisors know why, and if, he wasn't working in the normal" eager manner. Id. Plaintiff also alleges that right after defendant Lebeck saw plaintiff with a blood-soaked towel on his face he told Bristow that "something was up."*fn5 Plaintiff further alleges that defendants Lebeck and Sherbin and Correctional Officer Bristow then lied to cover up the events that had transpired. Finally, plaintiff alleges that on the day of the incident he had seen Correctional Officer Bristow reading and sleeping on duty and that he and defendant Sherbin had left the building on the more than one occasion.
The third amended complaint on which this action is proceeding contains no allegations similar to those raised against Correctional Officer Bristow in the proposed fourth amended complaint, nor did plaintiff name any Doe defendant who might reasonably be construed now to be Correctional Officer Bristow.
This action was filed in June 2004, and between the date this action was opened and May 27, 2005, plaintiff's original, first and second amended complaints were dismissed, all with leave to amend. As noted above, the third amended complaint, on which this action was proceeding, was filed in July 2005. In June 2006, plaintiff filed a motion to amend the complaint together with a proposed fourth amended complaint which did include allegations against Correctional Officer Bristow substantially similar to those raised in the present proposed fourth amended complaint. Plaintiff's motion to amend, however, was styled as a motion to add parties previously named as John Does whose names had been ascertained through discovery. As noted above, plaintiff's third amended complaint contains no allegations against any John Doe defendant similar to those raised against Correctional Officer Bristow. Plaintiff's motion to amend was construed as a motion to substitute the doctor and nurse at Mercy who treated plaintiff, and was denied. See Findings and Recommendations filed September 26, 2006, at 11-12; Order filed October 26, 2006.
As noted above, in June 2008, the United States Court of Appeals for the Ninth Circuit resolved the interlocutory appeal filed by defendants Sherbin and Lebeck from the denial of summary judgment by, inter alia, remanding the matter to this court for further consideration of the defense of qualified immunity. The instant motion to amend was not filed until more than two years after the order of remand.
Plaintiff did not allege in his third amended complaint against any Doe defendants the facts that form the basis for his proposed claim against Correctional Officer Bristow, nor has he shown any grounds that would warrant reconsideration of the 2006 order denying his motion to file an amended complaint that included the proposed claims against Correctional Officer Bristow. Moreover, plaintiff has delayed more than two years after the claims against the correctional officer defendants were remanded from the court of appeals to seek leave to add this new ...