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Womack v. Windsor

United States District Court, E.D. California

March 23, 2017

RODNEY JEROME WOMACK, Plaintiff,
v.
J. WINDSOR, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding pro se. The instant action proceeds on claims that, following his transfer to High Desert State Prison (“HDSP”) on March 18, 2014, defendants Dr. Windsor, Dr. Lankford, Dr. Lee and T. Mahoney were deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment, in connection with plaintiff's pain management in lieu of receiving further ankle surgery. Specifically, plaintiff contends that defendants' decision to change his pain medication was made for non-medical reasons, based on a policy at HDSP that no inmate would be prescribed methadone or morphine. Plaintiff seeks leave to amend his complaint to add two new defendants. Plaintiff also moves to supplement his pleading to add new claims as to five new defendants, two named as John Does. As set forth below, the undersigned recommends that plaintiff's motions be denied.

         I. Amended Complaint

         Plaintiff was granted leave to amend to include his current allegations against defendants Dr. Windsor, Dr. Lankford, Dr. Lee and T. Mahoney, but also include his proposed claims against Dr. Swingle in connection with the alleged failure to correct the deficiencies plaintiff brought to Dr. Swingle's attention through the grievance process, based solely on plaintiff's claim that he was denied adequate pain medication based on HDSP policy, and that the second surgery for his left ankle was inappropriately delayed. (ECF No. 43 at 7.)[1] Plaintiff was also granted leave to file a motion to amend to include claims as to T. Murray, but only if plaintiff could demonstrate that such allegations arise from the instant claims and not from new incidents that took place after the instant action was filed on March 9, 2015. (ECF No. 43 at 7.)

         Plaintiff was also required to file a motion to amend specifically addressing the factors required under Foman v. Davis, 371 U.S. 178, 182 (1962). (ECF No. 43 at 8.) Plaintiff was granted thirty days in which to file a motion to amend, accompanied by a proposed amended complaint. (ECF No. 43 at 8.) The deadline for filing motions to amend was set for October 11, 2016. (Id.)

         On September 16, 2016, plaintiff filed a proposed amended complaint. (ECF No. 45.) Defendants filed an opposition, and plaintiff filed a reply. (ECF Nos. 47, 48.) Plaintiff seeks to add two new defendants, Dr. Swingle and CEO Murry, both of whom addressed grievances concerning plaintiff's medical care for pain remaining at issue here.

         Initially, the court notes that plaintiff again failed to follow the court's direction. Plaintiff did not file a motion to amend with his proposed pleading, and therefore did not separately address the Foman factors in a separate motion as required, depriving defendants an opportunity to rebut the factors he finally addressed in his reply.

         A. Legal Standard

         Because defendants have filed an answer, Rule 15(a)(2) governs plaintiff's motion to amend, as follows:

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

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.'” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed.R.Civ.P. 15(a)); accord Sonoma Cnty. Ass'n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013). However, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951; accord Sonoma Cnty. Ass'n of Retired Emps., 708 F.3d at 1117. “‘[P]rejudice to the opposing party carries the greatest weight.'” Sonoma Cnty. Ass'n of Retired Emps., 708 F.3d at 1117 (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam)). Leave to amend “is properly denied . . . if amendment would be futile.” Carrico v. City and Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011) (citing Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010)). Further, “[a] party cannot amend pleadings to ‘directly contradict an earlier assertion made in the same proceeding.'” Air Aromatics, LLC v. Opinion Victoria's Secret Stores Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)).

         B. Discussion

         Bad Faith

         The first of the four relevant factors, bad faith, weighs moderately against granting leave to amend. 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. Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999); see William W. Schwarzer, A. Wallace Tashima & James M. Wagstaff, Cal. Prac. Guide: Fed. Civ. Proc. Before Trial ¶¶ 8:1511-12 (The Rutter Group 2014) (explaining that when the plaintiff “has had adequate opportunity for discovery and defendant's motion for summary judgment is pending, leave to amend may be denied unless plaintiff can produce ‘substantial and convincing evidence' supporting the proposed amendment” due to the possibility that the plaintiff “may simply be maneuvering to stave off dismissal of the case”) (quoting Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 944 (7th Cir. 1995) and citing Parish v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999); Somascan, Inc. v. Philips Med. Systems Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013)).

         No discovery has been taken on plaintiff's proposed claims against Dr. Swingle and CEO Murray. Discovery closed on July 29, 2016, months before plaintiff submitted the proposed amended complaint on September 16, 2016. Moreover, in his proposed amended complaint signed under penalty of perjury, plaintiff claims that once his appeal as to Dr. Swingle was totally exhausted (April 29, 2015), he “immediately sought to amend Dr. Swingle to his original complaint.” (ECF No. 45 at 3:17-20.) But plaintiff's first motion to amend was not filed until May 6, 2016, and did not include his proposed claims against Dr. Swingle or CEO Murray. Plaintiff did not file a motion to amend as to Dr. Swingle and CEO Murray until June 23, 2016, and failed to submit a proposed pleading including such claims until September 16, 2016. Moreover, as pointed out by defendants, plaintiff was aware of his claims against Dr. ...


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