Free Report and Recommendation - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Paul E. Rhodes,

) ) Plaintiff, ) ) vs. ) ) Quirino Valeros, et al., ) ) Defendants. ) ______________________________)

CV 04-644-PHX-JAT (MS)

REPORT AND RECOMMENDATION

TO THE HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT JUDGE:
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Pending before the Court is Plaintiff's "Motion for Second Amended Complaint"
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(Doc. # 55). Plaintiff seeks to add three defendants to his Eighth Amendment claim
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(Count 1) and add a due process claim (Count 2). Plaintiff previously amended his
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complaint on June 14, 2005 (Doc. # 27). Defendants have not filed a response to
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Plaintiff's motion to amend.
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FED. R. CIV. P. 15(a) permits the Court to grant leave to amend a complaint "freely
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. . . when justice so requires." However, the right to amend is not absolute. Foman v.
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Davis, 371 U.S. 178, 182 (1962). In deciding whether justice requires granting leave
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to amend, the Court should consider the factors of: (1) the presence or absence of
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undue delay, (2) bad faith, (3) dilatory motive, (4) repeated failure to cure deficiencies
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by previous amendments, (5) undue prejudice to the opposing party, and (6) the futility
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of the proposed amendment. Id. at 182-83. Leave to amend need not be given if a
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complaint as amended is subject to dismissal. Moore v. Kayport Pkg Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). Plaintiff seeks to add as defendants Carrie Feehan, Judy Aguilar, and Dennis Chenail. (Doc. # 55, Proposed Second Amended Complaint at 4-H and 4-I). Plaintiff's Second Amended Complaint alleges that the new defendants are responsible for conducting "tele-med consults" and ensuring that medical records are stored. Id. Plaintiff avers that the three additional defendants failed in their responsibilities for carrying out the consultations and storing medical records, which further compounded his alleged injuries. Because Defendant submits that he discovered the identities and job responsibilities of these three individuals during discovery,1 and because the nature of the claim relates to his claim of deliberate indifference, the Court will recommend the addition of the three new defendants.2 That said, the Court will also recommend that

Defendant apparently learned of these individuals' identities through correspondence from Defendants' counsel dated December 5, 2005. (Doc. 64, Ex. E).
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Rule 15(c) provides: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Rule 15(c), Federal Rules of Civil Procedure. Relation back depends on four factors: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. Schiavone v. Fortune, 477 U.S. 21, 29 (1986). The first factor is satisfied here because the allegations against the proposed defendants arise out of the same circumstances specified in the original complaint. The second and third factors are arguably satisfied as well, although it is a much closer question. Dennis Chenail was named in the original and first amended complaints and was dismissed, and therefore has

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additional discovery be authorized with respect to the new defendants, for a limited time not to exceed thirty (30) days. Moreover, the Court will recommend that these newly named defendants be permitted to join in Defendants' pending motion for summary judgment, or alternatively file a separate motion for summary judgment if they believe such action is warranted. Plaintiff also seeks to add a due process claim. Plaintiff has amended his complaint once before and Plaintiff acknowledges that his due process claim was not accepted in his original or first amended complaint. His due process claim has previously been rejected because Plaintiff "failed to identify a liberty interest that would require due process protections." (Doc. # 15 at 6). Plaintiff's proposed Second

Amended Complaint avers that he was denied due process because he was not present for a "tele-med consult." As a result, Plaintiff submits, he was denied his guaranteed right to adequate medical treatment. Plaintiff again fails to allege deprivation of a constitutionally protected liberty interest as the right to medical treatment is not a right such that it rises to the level of requiring due process protection. Instead, Plaintiff has made a similar claim pursuant to the Eighth Amendment's protection and can seek redress for his alleged injury in that regard. Because leave to amend need not be given if a complaint as amended is subject to dismissal, and because Plaintiff again fails to state a protected liberty interest, Plaintiff's motion to amend his complaint with respect to his due process claim should again be denied. Accordingly,

knowledge of this lawsuit. Judy Aguilar and Carrie Feehan were disclosed to Plaintiff in a letter from Defendants' counsel dated December 5, 2005 (Doc. # 64, Ex. E). Notice may be informal if the proposed defendant is aware that the complaint has been filed and is not prejudiced, Korn v. Royal Caribbean Cruise Line, Inc, 724 F.2d 1397, 1399 (9th Cir. 1984). Here, there is reason to believe that Judy Aguilar and Carrie Feehan were aware that the complaint was filed, due to the ongoing discovery disputes in this case and Defendants' counsel's necessity to obtain information from them regarding Plaintiff's medical consultations. Moreover, Defendants have not responded to Plaintiff's motion to amend, and therefore have not offered any reasons against granting the amendment, such as prejudice or expiration of the statute of limitations. For all of these reasons, the Court will recommend that Plaintiff be permitted to add the three additional defendants.

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IT IS RECOMMENDED THAT Plaintiff's "Motion for Second Amended Complaint" (Doc. # 55) be GRANTED IN PART AND DENIED IN PART, as explained herein. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. 28 U.S.C. §636(b)(1) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.

DATED this 16th day of February, 2006.

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