Opinion
CV 21-01792 PHX DWL (CDB)
04-15-2022
Angel Soto, Plaintiff, v. Nathaniel Harris, Unknown Jordan, Angel Merriman, Defendants.
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA:
Before the Court is Plaintiff's motion seeking leave to join parties and amend his complaint. (ECF No. 43).
I. Background
Plaintiff, who is in custody, proceeds pro se in this civil rights matter, which was filed October 22, 2021. In an Order issued November 4, 2021, the Court ordered Defendants Harris, Jordan, and Merriman to answer the Complaint. (ECF No. 6). The Court construed the claims in the Complaint as follows:
In his one-count Complaint, Plaintiff asserts a claim for deficient medical care against Defendants Property Sergeant Harris, Correctional Officer (CO) II/Property Officer Jordan, and Provider Dr. Angel Merriman, seeking money damages. Plaintiff claims that in 2008, a doctor issued him a special needs order (“SNO”) for medical shoes because of torn tendons and ligaments in his left ankle and a “severely damaged” left heel. (Doc. 1 at 3.) According to Plaintiff, sometime after March 5, 2021, Defendants Harris and Jordan went to the health unit and had Defendant Merriman change the1
status of Plaintiff's SNO to “denied” because they did not want Plaintiff to continue receiving medical shoes from an outside vendor. [footnote two: Although Plaintiff does not identify specifically when Defendants Harris and Jordan went to the health unit, it appears to have been sometime after March 5, 2021. (Doc. 1 at 4.)] (Id. at 4.) On August 17, 2021, a non-party provider allegedly reinstated Plaintiff's SNO and told him that Arizona Department of Corrections staff cannot direct a medical provider to change a chronic-care SNO.
Plaintiff claims that Defendant Merriman altered the status of Plaintiff's SNO without performing a risk assessment and that Defendants Harris and Jordan knew Plaintiff would be “disable[d] ... from daily activities” without his medical shoes because both had, in the past, received the shoes and delivered them to Plaintiff. (Id. at 6.) As a result of Defendants' conduct, Plaintiff allegedly suffered mental anguish and had to wear shoes that lacked the support and comfort he required, resulting in impaired mobility and an inability to exercise.
Liberally construed, Plaintiff has stated an Eighth Amendment medical care claim against Defendants Harris, Jordan, and Merriman, and they will be required to answer the Complaint.
(ECF No. 6 at 3 & n.2).
Defendants Harris and Merriman waived service; these Defendants answered the Complaint and a scheduling order (ECF No. 12) issued January 25, 2022. Pursuant to the scheduling order, as amended by the order at ECF No. 35 extending each of the deadlines in the scheduling order by thirty days, any motion to amend the pleadings or add parties was due April 11, 2022. 2
Service on Defendant Jordan was returned unexecuted on December 7, 2021. (ECF No. 8). Plaintiff asked the Court to order the ADCRR to disclose the last known address of Defendant Jordan. (ECF No. 21). Per the Court's order, the last known address of Defendant Jordan was disclosed and service at the address disclosed by the ADCRR was returned as unexecuted on March 18, 2022. (ECF No. 41). A Report and Recommendation, recommending that Defendant Jordan be dismissed for failure to serve, was docketed March 22, 2022. (ECF No. 42).
The Order at ECF No. 35, docketed March 7, 2022, states: IT IS FURTHER ORDERED that Plaintiff's motion at ECF No. 33 shall be construed as a motion seeking an extension of each of the deadlines specified in the Order at ECF No. 12, and the motion is granted. Accordingly, each of the deadlines specified in the motion at ECF No. 12 is extended for a period of thirty (30) days. (ECF No. 35).
On March 22, 2022, Plaintiff docketed a pleading captioned as a “Request by Plaintiff for Joinder of Parties and Amending of Pleadings.” (ECF No. 43). The pleading was signed March 9, 2022. The pleading does not include a proposed amended complaint in the form required by Rule 15 of the Local Rules of Civil Procedure.
Local Rule 15(a) provides: (a) Amendment by Motion. A party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion, which must indicate in what respect it differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added. The proposed amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits. ...
In his motion to amend Plaintiff seeks to add Wexler, “[t]he Insurance H.M.O.” at the time “[t]he medical incidents in question began in 2008, ” and Corizon, the entity that “replaced” Wexler, and Centurion, the entity that “replaced” Corizon. (ECF No. 43 at 2).Plaintiff asserts “Corizon violated numerous court ordered stipulations and Eyman Complex in particular was found to be in non-compliance during the Plaintiff's allegations;” in support of this contention Plaintiff references Jensen v. Shinn, 2:12-cv-00601-ROS. (Id.). Plaintiff alleges “‘Wexler' ‘Corizon' and ‘Centurion'” all “fall under” Rule 17(b) of the Federal Rules of Civil Procedure, i.e., they are “a Corporation, by the law under which it was organized, ” and he asserts these entities violated his Eighth Amendment rights. (ECF No. 43 at 2-3). Plaintiff asks the Court to join Wexler, Corizon, and Centurion as defendants. (ECF No. 43 at 3-4). Plaintiff also asks the Court to join as a defendant Natalya Weigel N.P., asserting “retaliation by provider Weigel and Plaintiff is currently embroiled in grievance process w/N.P. Weigel for same negligence and deliberate indifference set forth in (Doc. 1) of Plaintiff's Complaint.” (ECF No. 43 at 4).
Centurion replaced Corizon as the provider of inmate medical care on July 1, 2019.
The “supporting facts” Plaintiff supplies to support the amendment of his Complaint and the joining of parties are:
Plaintiff alleges that Wexler Inc. Corizon Inc., and Centurion Inc. are not providing continuity of care for my medical condition as diagnosed by a licensed medical doctor/[practitioner].3
Plaintiff alleges that Natalya Weigel N.P. is acting in retaliation by discontinuing Plaintiff's care and “losing” his medical records.
Supporting facts will be seen thru Plaintiff's medical records and grievance files, as Plaintiff exhausts all administrative remedies.(Id.). Plaintiff also asserts Weigel “tampers w/Plaintiff's medical file to avoid treating the Plaintiff [per prior practitioners'] recommendations. Also, Plaintiff alleges that Natalya Weigel is/was employed by Corizon Inc. and now Centurion Inc.” (ECF No. 43 at 6).
In response to Plaintiff's motion at ECF No. 43, Defendants assert the motion is not timely and note Plaintiff failed to attach a copy of his proposed amended complaint to the motion. (ECF No. 52 at 1-2).
II. Governing Law
Rule 15(a) of the Federal Rules of Civil Procedure provides a plaintiff should be given leave to amend their complaint when justice so requires. Granting or denying leave to amend is a matter committed to the Court's discretion. E.g., Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). Futility of amendment is sufficient to justify denial of leave to amend. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010). A proposed amended complaint is futile if, accepting all of the facts alleged as true, it would be immediately “subject to dismissal” for failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998); Riverview Health Inst. LLC v. Medical Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010); Jones v. Town of Quartzsite, 677 Fed.Appx. 317, 318 (9th Cir. 2017).
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id., 4 quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
The Court is obliged to liberally construe an incarcerated pro se plaintiff's claims. See, e.g., Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, although pro se pleadings are liberally construed, conclusory and vague allegations will not support a cause of action. E.g., Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, a liberal interpretation of a civil rights claim may not supply essential elements of the claim that were not initially pled. Id. See also Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014), citing Pena v. Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992).
To state a cognizable claim for relief pursuant to § 1983, a plaintiff must allege facts sufficient to establish: (1) an act by the named defendant; (2) taken under color of state law; (3) deprived the plaintiff of a federal right; and (4) caused him damage. E.g., Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005). Additionally, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the cognizable injury and the conduct of that defendant. E.g., Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). A claim may be properly dismissed when the pleading lacks specific factual allegations showing the named defendant's participation in the alleged constitutional violation. See Iqbal, 556 U.S. at 678; Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Richards v. Harper, 864 F.2d 85, 88 (9th Cir. 1988); Carey v. Von Blanckensee, 515 F.Supp.3d 1051, 1055 (D. Ariz. 2021). Additionally, “legal conclusions couched as factual allegations are not given a presumption of truthfulness and conclusory allegations of law and unwarranted inferences are not sufficient” to state 5 a claim for relief that will survive a motion to dismiss. McGrath v. Scott, 250 F.Supp.2d 1218, 1220 (D. Ariz. 2003) (internal quotations omitted).
To state an Eighth Amendment medical claim, a plaintiff must show both a “serious medical need” and that the named defendant's response to the serious medical need was deliberately indifferent. E.g., Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Jett, 439 F.3d at 1096.
The First Amendment protects inmates from retaliation when they have sought redress from constitutional violations, including their right to access the courts. E.g., Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (emphasis added).
III. Analysis
Based on the case management deadlines in this matter, as extended by the Order at ECF No. 35, Plaintiff's motion to join parties and amend his complaint is timely, although it appears Plaintiff did not receive the Order at ECF No. 35 until after he signed submitted his motion to the prison's mail system. As noted by Defendants, Plaintiff failed to file his motion to amend in compliance with the requirements of Local Rule 15(a). 6
However, in the interest of judicial efficiency, the merits of the motion will be addressed rather than delaying these proceedings by requiring Plaintiff to replead his motion in compliance with the Local Rule.
Plaintiff seeks to add Wexler, Corizon, and Centurion as defendants with regard to his Eighth Amendment claim. Claims under § 1983 may be directed at a private entity acting under color of state law. See, e.g., Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012).
A private entity is liable under § 1983 if a plaintiff's constitutional rights were violated as a result of a policy, decision, or custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012) .... A private entity is not liable simply because it employed individuals who allegedly violated a plaintiff's constitutional rights. See Tsao, 698 F.3d at 1139. Therefore, [the entity] can only be held liable under § 1983 for its employees' civil rights deprivations if Plaintiff can show that an official policy or custom caused the constitutional violation. Id. ...
To maintain a claim against [a prison health-care provider] as an entity, Plaintiff must meet the test articulated in Monell v. Department of Social Services, 436 U.S. 658, 690-94 [] (1978). See Tsao, 698 F.3d at 1139 (applying Monell to private entities). The requisite elements of a § 1983 claim against a private entity performing a state function are: (1) the plaintiff was deprived of a constitutional right; (2) the entity had a policy or custom; (3) the policy or custom amounted to deliberate indifference to the plaintiff's constitutional right; and (4) the policy or custom was the moving force behind the constitutional violation. ...Benge v. Ryan, 154 F.Supp.3d 857, 878 (D. Ariz. 2016) (some internal citations omitted).
The only fact alleged by Plaintiff regarding these entities in support of his Eighth Amendment claim is his broad allegation that “Wexler Inc., Corizon Inc., and Centurion Inc. are not providing continuity of care for my medical condition as diagnosed by a licensed medical doctor/[practitioner].” Plaintiff fails to allege sufficient facts to support a plausible and cognizable § 1983 claim against these entities. Even if Harris, Merriman, Jordan, and/or Weigel violated Plaintiff's Eighth Amendment rights, this alone does not confer liability on any of the entities Plaintiff seeks to add as a defendant. Additionally, 7 because neither Wexler nor Corizon provided medical services to Arizona inmates, including Plaintiff, within two years (the applicable statute of limitations) of the date his Complaint was filed on October 22, 2021, any claims against Wexler and Corizon are barred by the statute of limitations.
A court may raise the defense of statute of limitations sua sponte. See, e.g., Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993). Section 1983 does not include its own statute of limitations and federal courts apply the statute of limitations governing personal injury claims in the forum state, which in Arizona is two years. Wilson v. Garcia, 471 U.S. 261, 280 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).
Plaintiff arguably presents sufficient facts to allege an Eighth Amendment claim against Weigel. However, although leave to amend a complaint under Rule 15(a) should be given freely, a request to amend may be denied when allowing a plaintiff to proceed on an amended complaint would delay the on-going proceedings, see Premo v. Martin, 119 F.3d 764, 772 (9th Cir. 1997), and when the amendment seeks to add new claims unrelated or only tangentially related to the original allegations, see National Treasury Employees Union v. Helfer, 53 F.3d 1289, 1295 (D.D.C. 1995); Lopez v. Smiley, 375 F.Supp.2d 19, 30 (D. Conn. 2005). These rationales have added force when the rescheduling of dispositive motions would be necessitated by the filing of an amended complaint. See Stiller v. Colangelo, 221 F.R.D. 316, 317 (D. Conn. 2004). Additionally, a denial of leave to amend may be appropriate when the denial will not prevent plaintiff from having his additional claims heard. Id.
Plaintiff's claims against Weigel arise from different and/or additional facts than those comprising the instant suit, and it also appears Plaintiff is currently and/or was still in the process of administratively exhausting a claim against Weigel when he filed his Complaint. Per the most recent order (ECF No. 35, amending ECF No. 12), all requests 8 for discovery must be served by May 30, 2022, and dispositive motions are due August 25, 2022. Allowing Plaintiff to add an additional defendant at this time would, due to the time required to serve the defendant, unduly prejudice the existing Defendants because it would require re-opening discovery and rescheduling dispositive motions. Furthermore, denial of leave to add Weigel as a defendant in this matter will not prevent Plaintiff from having his claims against Weigel heard, as there appears to be no statute of limitations or claim preclusions issues with regard to these claims.
Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit, although exhaustion is an affirmative defense rather than a jurisdictional prerequisite. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). In this matter, judicial efficiency weighs in favor of the initiation of a separate action against Weigel rather than delay these proceedings by adding Weigel as a defendant in this matter, particularly when exhaustion is a potential issue.
Accordingly, IT IS RECOMMENDED that Plaintiff's motion at ECF No. 43 be denied.
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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 7(b)(2). Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered 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. See Fed.R.Civ.P. 72. 9