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Meadows v. Reeves

United States District Court, E.D. California

March 24, 2017

MICHANN MEADOWS, Plaintiff,
v.
DR. REEVES, Defendants.

          ORDER ON PLAINTIFF'S MOTION TO AMEND (Doc. 127)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         This action is proceeding on Plaintiff's claim against Defendant, Dr. Reeves, for violating her rights based on events in gynecological examinations while she was under his care from 1998 - 2009 as stated in the Second Amended Complaint. (See Docs. 28, SAC; Doc. 42, O Screen.) Plaintiff filed a motion to amend her pleading to reinstate a due process claim under the Fourteenth Amendment against Defendant and injunctive relief claims from the CDCR via Secretary Scott Kernan. (Doc. 127.)[1] Plaintiff has not shown good cause to modify the scheduling order and allow late amendment of her operative pleading. Thus, the motion is DENIED.

         I. Modification of Scheduling Orders -- Rule 16(b):

         Pursuant to Federal Rule of Civil Procedure 16(b)(3)(A), district courts must enter scheduling orders to establish deadlines for joinder of parties, amending the pleadings, discovery, and filing of motions. Scheduling orders may also “set dates for pretrial conferences and for trial.” F.R.Civ.P. 16(b)(3)(B)(v). The scheduling order “controls the course of the action unless the court modifies it.” F.R.Civ.P. 16(d). Scheduling orders “are the heart of case management, ” Koplve v. Ford Motor Co., 795 F.2d 15, 18 (3rd Cir. 1986), and are intended to alleviate case management problems. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). A “scheduling conference order is not a frivolous piece of paper, idly entered, [2] which can be cavalierly disregarded without peril.” Id. Parties must “diligently attempt to adhere to that schedule throughout the subsequent course of the litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999); see Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va. 1995).

         A party seeking leave of court to amend a pleading, with implications for the schedule of a case, must first satisfy Rule 16(b)'s “good cause” standard. Johnson, 975 F.2d at 608-09; F.R.Civ.P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge's consent.”). This good cause evaluation “is not coextensive with an inquiry into the propriety of the amendment under . . . Rule 15.” Id. at 609. Distinct from Rule 15(a)'s liberal amendment policy, Rule 16(b)'s good cause standard focuses primarily on the diligence of the moving party, id., and that party's reasons for seeking modification, C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011).

         In Johnson, 975 F.2d at 609, the Ninth Circuit Court of Appeals explained:

. . . Rule 16(b)'s “good cause” standard primarily concerns the diligence of the party seeking the amendment. The district court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment) . . . Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. . . . [T]he focus of the inquiry is upon the moving party's reasons for seeking modification. . . . If that party was not diligent, the inquiry should end.

         Moreover, this Court's Local Rule 144(d) requires a party to seek extension of the deadline as soon as the need becomes apparent. See also Hood v. Hartford Life & Acc. Ins. Co., 567 F.Supp.2d 1221, 1224 (ED CA. 2008).

         A. Analysis

         The Court issued the Discovery and Scheduling order and set December 21, 2014 as the deadline to amend pleadings. (Doc. 53.) Thus, Plaintiff's motion to amend her pleading cannot be considered absent good cause under Rule 16 to modify the Discovery and Scheduling Order.

         1. Plaintiff's Motion

         The Discovery and Scheduling Order which opened discovery in this case issued on June 24, 2014. (Doc. 53.) Plaintiff presents evidence that while pro se, she engaged in her best efforts to conduct discovery, but was hampered by her lack of knowledge on the discovery process and difficulty accessing the law library at the prison. (Doc. 129, Meadows Decl., ¶¶ 8-9.) Notably, the Court appointed counsel was for Plaintiff in April 2016 (Doc. 88) to assist in a June 30, 2016 settlement conference, but the attorney remained with the case thereafter.[3]

         At the Court's direction, the parties filed a joint status report on July 28, 2016, in which Plaintiff requested an additional six months to conduct limited discovery. (Docs. 97, 98.) On August 9, 2016, the Court granted Plaintiff's request for limited discovery. (Doc. 101.) After efforts to engage in informal discovery failed, Plaintiff served written discovery requests on Defendant in September 2016. (Doc. 130, Huang Decl., ¶ 9.) In October 2016, after Defendant asserted custody and control objections to Plaintiff's discovery, Plaintiff served subpoenas on CDCR and CCWF. (Id. at ¶ 14.) Defendant's counsel subsequently served as counsel for CDCR and CCWF in responding to Plaintiff's subpoenas. (Id.) Plaintiff's counsel began taking the deposition of nurse witnesses in October 2016, shortly after necessary documents were obtained. (Id. at ¶ 15.) Although Plaintiff's counsel served a notice to depose Defendant on October 13, 2016, his deposition was postponed until November 8, 2016 due to his medical issues. (Id. at ¶¶ 15-16.) On November 8, 2016, Defendant's deposition began, but ended early at Defendant's request. (Id. at ¶ 17.) Defendant's deposition continued on December 22, 2016, but may be continued pending resolution of ongoing discovery disputes. (Id.) The deposition of LVN Anna Miller (aka Anna Moore), [4] who was present during the incident at issue on July 22, 2009, was taken by tele-conference video deposition on January 6, 2017. (Id. at ¶ 20.) Plaintiff claims it was not until the depositions of Defendant and LVN Miller that Plaintiff obtained evidence confirming that if Defendant attempted to perform the endometrial biopsy, California regulations required him to obtain Plaintiff's written consent.

         Defendant testified, consistent with the statements asserted in his May 2015 summary judgment declaration, that he initiated and attempted but did not complete an endometrial biopsy on Plaintiff on July 22, 2009. (Doc. 130-1, Huang Decl., Exh. C, pp. 14-17.) Defendant acknowledged that his normal procedure was to obtain the written consent of an inmate prior to performing an endometrial biopsy. (Id. at p. 3.) Plaintiff's medical records contain a written consent form she signed for an endometrial biopsy by Defendant two years before. (Doc. 129-1, Meadows Decl., Exh. B, p. 2; Huang Decl. at ¶ 39.) However, Plaintiff's medical records contain no executed consent for the endometrial biopsy related to the events on July 22, 2009. (Doc. 130, Huang Decl. at ¶ 39.)

         In her deposition, taken on January 6, 2017, LVN Miller authenticated[5] the medical record on which she documented Defendant's exam of Plaintiff on July 22, 2009. (Doc. 130, Huang Decl., Exh. D, pp. 17-19, Exh. E.) LVN Miller did not recall Defendant performing an endometrial biopsy on Plaintiff on that date and testified that she would have noted it in her medical record if it had occurred. (Doc. 130, Huang Decl., Exh. D, pp. 16-17.) LVN Miller's notes do not indicate that Plaintiff underwent a biopsy procedure. (Id.)

         2.Defendant's Opposition

         Defendant's opposition only addresses the aspect of Plaintiff's motion which seeks to amend her operative pleading under Rule 15 -- it does not expressly address the standards applicable for modification of the Discovery and Scheduling Order under Rule 16. (See Doc. 137.) However, Defendant asserts that Plaintiff unduly delayed in seeking to amend her pleading under Rule 15, which applies also to the diligence requirement of Rule 16.

         To this end, Defendant contends that Plaintiff unduly delayed seeking amendment of her complaint to allege a due process claim under the Fourteenth Amendment for performing a surgical procedure without her consent. Defendant argues that he raised the biopsy procedure as a defense in May 2015 when he filed for summary judgment (Doc. 74), and at that time, Plaintiff knew whether Defendant attempted that procedure without her written consent. (Doc. 137, 9:1-9.) Defendant argues that, Plaintiff unduly delayed seeking leave to amend to include a due process claim against him. (Id.)

         3.Lack of diligence

         Plaintiff relies significantly on the fact that she was unrepresented at the time of her initial discovery efforts and at the time of the motion for summary judgment. However, she offers no satisfactory explanation why, in 11 months since the Court appointed counsel for her once again (Doc.88), she failed to seek amendment to the complaint. The Court finds this fails to demonstrate diligence for several reasons.

         First, at the time she filed her second amended complaint, Plaintiff was represented by counsel and she did raise a due process claim. (Doc. 28.) However, it was dismissed (Docs. 38, 42), at her agreement (Doc. 41), because the complaint failed to state any facts to support such a claim (Doc. 38). Despite that counsel drafted this complaint, she offers no explanation for the absence of any factual allegations to support the due process claim.

         Second, counsel admits she was aware at the time she drafted the second amended complaint that Plaintiff wished to assert a claim for injunctive relief to prevent Dr. Reeves from examining her again and for all future examinations be performed by a female gynecologist. (Doc. 142-1 at 2.) She explains that this omission was inadvertent. (Id.) Notably, however, not only is the request for this type of injunctive relief not sought in the complaint but facts needed to support this claim for relief were absent also. (Doc. 28.)

         Third, when she filed her successful opposition to the motion for summary judgment in June 2015, Plaintiff adamantly denied under penalty of perjury that Dr. Reeves ever attempted a biopsy during the exam in July 2009. (Doc. 79 at 1-2.) She asserted, “On July 22, 2009, an endometrial biopsy was not attempted as Dr. Reeves stated in his Introduction . . . This is appauling [sic] and a unfathomable untrue statement and tactic to waste the Court's time.” (Id.) She stated also, “Defendant Reeves now states on EX.B, Pg. 2, line 19, that he performed a PAP Smear and attempted an endometrial biopsy. Then on line 21 he states the procedure was performed to determine the cause of Plaintiff's purported abnormal bleeding. This is not true.” (Id.) She then asserts, “Defendant Reeves contends that he did not know why Meadows' replied in that manner due to having had prior biopsies, even though on that day a biopsy never took place; Plaintiff was tired of being sexually abused and spoke out!” (Id. at 1-2.) She reports, “Defendant Reeves never spoke of any biopsy taking place on the 22nd Day of July, 2009, nor did LVN Moore; and Dr. Reeves follow-up notes did not mention this procedure.” (Id. at 2.) Clearly, at the time she filed this declaration, she knew that she had not consented to any such procedure and knew that the records did not document either a consent form or that the procedure was ever attempted. Even now, though she seeks to assert a due process claim based upon the failure to obtain consent, she does not provide any evidence that she believes that he did perform this procedure. In light of the fact she had undergone this procedure in the past, the Court cannot accept that she could not have known had Dr. Reeves attempted this procedure.

         Finally, even if Plaintiff did not appreciate that she could plead -- assuming she could do it honestly -- that Dr. Reeves attempted to perform a procedure without her consent, there is no explanation why her counsel failed to appreciate this fact and act immediately to seek to amend. At most, counsel argues that the deposition of Dr. Reeves confirmed that he claimed to have performed the biopsy in July 2009. (Doc. 128 at 9-10.) However, counsel admits that merely repeats of what he said under penalty of perjury in May 2015. (Id. at 10.) Likewise, despite her argument to the contrary, the deposition of Ms. Miller added little to what Plaintiff already knew. Apparently, the only new fact is that Ms. Miller authenticated the medical record and affirmed that she did not recall Defendant attempting a biopsy. Notably, though Defendant attacked the documents produced by Plaintiff in May 2015 as lacking authentication, the Court rejected the attack and relied upon these records to deny the motion for summary judgment.[6] (Doc. 83 at 7.) The Court observed, “Plaintiff states that no biopsy was scheduled for that day and that no biopsy was performed. [Cite] Plaintiff submits that neither Defendant's notes nor those of LVN Moore, who was also present, indicate that a biopsy was to be performed or was initiated.” (Id. at 5-6, internal citations omitted.) The Court observed further,

Defendant's evidence that the procedure he was attempting to perform on Plaintiff (and the removal of instruments) was medically necessary does not negate Plaintiff's testimony that his actions involving her genitals were sexually aggressive while she lay vulnerable on the exam table. Indeed, Defendant presents no evidence that Plaintiff consented to this biopsy and she adamantly denies that she did. Defendant presents no evidence that, medically justified or not, he was entitled to perform the biopsy in any manner-let alone one that injured Plaintiff-without her permission.

Id. Thus, it is clear that the depositions of Defendant and Miller were not needed before Plaintiff could seek to amend her complaint. On the other hand, though the Court agrees Plaintiff could not have met the December 2014 deadline to amend her complaint, the Court cannot find that Plaintiff acted diligently to seek the amendment once she was in possession of facts that suggested the need for the amendment. Likewise, once counsel was appointed, the Court cannot find that the further delay to February 2017 was justified.

         Moreover, if the new claim is permitted, the newly added defendant and the current one, would be entitled to attack the pleading. Given the imminence of the trial date, there is simply no time to do this and the trial would have to be continued. For a case that is five years old, this is untenable in light of the fact there was sufficient opportunity to raise the claim well before now. Modification is appropriate in instances where the district court determines that amendment “created no meaningful case management issues” and did not “infringe [ ] on the efficient adjudication of the litigation . . . based on the factual record already developed.” C.F. ex rel.Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011). That is not the situation here.

         Finally, the Court rejects that there is prejudice to Plaintiff imposed by the refusal to modify the scheduling order based upon the fact that the Court previously dismissed her prior due process claim. This alone would not preclude a due process claim in the future given Plaintiff's past due process claim failed to be supported by any facts, let alone a claim of lack of informed consent.[7] Moreover, as to the injunctive relief claim against Kernan in his official capacity, this appears unlikely to bar suit by Plaintiff if she has made a current and timely demand that the CDCR provide her a female gynecologist and she could demonstrate an entitlement to a female ...


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