Alejandre v. County of San Joaquin

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- [11] 12 CINDY M. ALEJANDRE; and DAVID No. 2:19-cv-00233-WBS-KJN GONZALEZ II as Co-Successors-in13 Interest to Decedent David Gonzales III, 14 MEMORANDUM AND ORDER RE: Plaintiffs, MOTION FOR LEAVE TO FILE A 15 FOURTH AMENDED COMPLAINT v. [16] COUNTY OF SAN JOAQUIN, a 17 municipal corporation; STEVEN BAXTER, individually and in his 18 capacity as a Sheriff’s deputy for the County of San Joaquin 19 Sheriff’s Department; MATTHEW FELBER, individually and in his 20 capacity as a Sheriff’s deputy for the County of San Joaquin 21 Sheriff’s Department; CHUE VANG; individually and in his capacity 22 as a Sheriff’s deputy for the County of San Joaquin Sheriff’s 23 Department; JASON ROHDENBURG, individually and in his capacity 24 as a Sheriff’s deputy for the County of San Joaquin Sheriff’s 25 Department; BARBARA GOEMAN and DOES 1-25, inclusive, 26 individually and in their official capacity as Sheriff’s 27 Deputies for the County of San Joaquin Sheriff’s Department, [1] Defendants. [3] 4 ----oo0oo---- 5 Plaintiffs Cindy M. Alejandre and David Gonzalez II 6 (“plaintiffs”) brought this action against the County of San 7 Joaquin, and Sergeant Steven Baxter, Deputy Matthew Felber, 8 Deputy Chue Vang, Deputy Jason Rohdenburg, Deputy Barbara Goeman, 9 and Does 1-25 (“defendants”) seeking compensatory and punitive 10 damages against defendants for violating federal civil rights 11 under 42 U.S.C. § 1983 , and seeking both survival and wrongful 12 death damages pursuant to state law in connection with the death 13 of the decedent, David Gonzalez III. 14 Presently before the court are plaintiffs’ Motion for 15 Leave to File a Fourth Amended Complaint, (“Pls.’ Mot. to Amend”) 16 (Docket No. 47.), and plaintiffs’ Request to File under Seal 17 Documents in Support of Plaintiffs’ Reply to File a Fourth 18 Amended Complaint. (“Pls.’ Mot. to Seal.”) (Docket No. 55.) 19 I. Factual and Procedural Background1 20 The court issued a pretrial scheduling order in this 21 case on December 30, 2019. (Scheduling Order (Docket No. 34).) 22 The court ordered therein that all discovery must be completed by 23 November 20, 2020. (Id. at 3.) The court additionally stated 24 that “no further joinder of parties or amendments to pleadings [26] 1 The court has previously recited in detail the factual background of this case in its order granting defendants’ motion 27 to dismiss. (See Order Granting Motion to Dismiss at 2 (Docket No. 12).) Accordingly, the court will refrain from doing so 28 again. 1 will be permitted except with leave of court, good cause having 2 been shown under Federal Rule of Civil Procedure 16(b).” (Id. at 3 2.) 4 Nevertheless, the court specifically contemplated 5 plaintiffs amending their complaint following the production of 6 the protocol investigation report by defendants, stating “[i]f 7 plaintiffs wish to substitute individual deputies for the current 8 Doe defendants after reviewing the County’s autopsy and protocol 9 investigation report, they must do so either by stipulation or 10 noticed motion.” (Id. at 2 n.1.) Plaintiffs took advantage of 11 that opportunity, and after receiving the protocol investigation 12 report, filed a Third Amended Complaint adding individual 13 deputies on March 30, 2020. (Third Amended Complaint(“TAC”) 14 (Docket No. 37).) 15 Plaintiffs now seek to file a Fourth Amended Complaint, 16 dismissing defendant Deputy Chue Vang from the action and adding 17 Correctional Health Services Deputies Jose Hernandez, Carlos 18 Prieto, Phillip Hicks, Khankhoune Kannalikham, and Sergeants 19 Anthony Goulart and Jason Whelan as defendants. (See Pls.’ Mot. 20 to Amend at 2.) 21 II. Discussion 22 A. Motion to Amend 23 Once the district court has filed a pretrial scheduling 24 order pursuant to Federal Rule of Civil Procedure 16, which 25 establishes a timetable for amending pleadings, that rule’s 26 standards control. See Johnson v. Mammoth Recreations, Inc., 975 27 F.2d 604 , 607–08 (9th Cir. 1992.) “A schedule may be modified 28 only for good cause and with the judge’s consent.” Fed. R. Civ. 1 P. 16 (b)(4). Unlike Rule 15(a)’s liberal amendment policy which 2 focuses on the bad faith of the party seeking to interpose an 3 amendment and the prejudice to the opposing party, Rule 16(b)’s 4 good cause standard primarily considers the diligence of the 5 party seeking the amendment. See Johnson, 975 F.2d at 609. 6 A district court may modify the pretrial schedule if it 7 cannot reasonably be met despite the diligence of the party 8 seeking the extension. See id. (citing Fed. R. Civ. P. 16 9 advisory committee’s notes to 1983 amendment.) Although the 10 existence or degree of prejudice to the party opposing the 11 modification might supply additional reasons to deny a motion, 12 the focus of the inquiry is upon the moving party’s reasons for 13 seeking modification. Id. (citing Gestetner Corp. v. Case Equip 14 Co., 108 F.R.D. 138, 141 (D. Me. 1985).) If the moving party was 15 not diligent, the inquiry should end. Id. 16 Plaintiffs argue that they acted diligently but were 17 nevertheless unable to determine the exact role and significance 18 of the defendants they seek to add before the scheduling order 19 deadline for amending pleadings. (See Pls.’ Mot. to Amend at 7– 20 8.) Plaintiffs contend that they only recently learned the 21 specific roles and conduct of these actors during the recent 22 depositions of defendants Sergeant Steven Baxter, Deputy Jason 23 Rohdenburg, and Deputy Chue Vang on August 6, 2020 and August 7, 24 2020. (See Decl. of K. Chike Odiwe in Supp. of Plfs.’ Mot. for 25 Leave to File a Fourth Amended Compl. at ¶¶ 12-16 (“Odiwe 26 Decl.”).) Specifically, plaintiffs maintain that the information 27 contained in the protocol investigation report, including the 28 interviews, does not delineate any actionable conduct against the 1 defendants that plaintiffs seek to add to their Complaint. 2 (“Pls.’ Reply in Supp. of Mot. to Amend” at 7.) (Docket No. 54.) 2 3 Defendants dispute plaintiffs’ purported diligence and 4 contend that they will be prejudiced by the late addition of 5 seven new defendants just six weeks before the November 20, 2020 6 fact discovery cut-off. (See Defs.’ Opp. to Pl.’s Mot. to Amend 7 at 8–9 (“Defs.’ Opp.”) (Docket No. 53).) Defendants further 8 emphasize that plaintiffs received the protocol report over eight 9 months ago and that this report contains written summaries of 10 interviews, and in some cases audio-recordings, which describe in 11 depth the involvement of all the defendants that plaintiffs seek 12 to add to their complaint, with the exception of Sergeant 13 Goulart. (See id.) 14 To determine the extent of the knowledge that 15 plaintiffs had about the role and conduct of the defendants they 16 seek to add prior to the depositions in this case in early 17 August, the court will analyze the interview summaries in the 18 excerpts of the protocol investigation report provided by 19 plaintiffs and the information contained about each defendant in 20 turn. (See Pls.’ Mot. to Seal at Ex. B (“Ex. B”).)3 [21] 2 Plaintiffs’ also contend that they failed to amend 22 prior to the deadline because defendants did not produce any documents in the case until a month after the deadline for 23 amendment had passed. (See Pls.’ Mot. to Amend at 8.) As noted earlier, the court specifically contemplated allowing plaintiffs 24 to amend after receiving the production of documents like the protocol investigation report from defendants. (See Scheduling [25] Order at 2 n. 1.) Accordingly, this objection is meritless and will not be considered. [26] 3 Neither plaintiffs nor defendants spend any time in 27 their briefs discussing whether plaintiffs acted diligently and have demonstrated good cause to dismiss Deputy Chue Vang as a 28 defendant. The court gathers that in the course of the August 1 1. Sergeant Anthony Goulart 2 Plaintiffs claim that Sergeant Goulart, who was the 3 head of the classification unit, had the responsibility to ensure 4 that the decedent was properly housed and received proper medical 5 attention, as decedent indicated to the county jail staff that he 6 was withdrawing from opioids during the booking process. (See 7 Pls.’ Mot. to Amend at 7.) Plaintiffs maintain that they only 8 learned of Sergeant Goulart through the August 7, 2020 deposition 9 of Deputy Rohdenburg. (Id.) Sergeant Goulart was not included 10 in the protocol investigation report because he had no 11 interaction with decedent at any point during his incarceration. 12 (Defs.’ Opp. at 7.) Because Sergeant Goulart was apparently not 13 mentioned in the discovery materials provided to plaintiffs, the 14 court finds that plaintiffs acted diligently and that there is 15 good cause for plaintiffs to amend their complaint to add 16 Sergeant Goulart as a defendant. 17 2. Deputies Jose Hernandez and Carlos Prieto 18 Plaintiffs claim that the deposition testimony of 19 Sergeant Baxter on August 6, 2020 revealed to plaintiffs for the 20 first time that Deputies Hernandez and Prieto forcibly dragged 21 decedent from his holding cell to the waiting room for the 22 transport bus to the Stockton Superior Court despite decedent 23 complaining multiple times that he felt too ill for the [24] deposition of Deputy Vang, the plaintiffs determined that Deputy [25] Vang did not merit inclusion as a defendant. Given that this motion was filed shortly thereafter, and seeing no objection to [26] the dismissal of Deputy Vang by defendants, the court finds that 27 plaintiffs acted diligently in dismissing Deputy Vang and that there is good cause to do so under Federal Rule of Civil 28 Procedure 16(b). 1 transport. (See Pls’ Mot. to Amend at 7.) However, in his 2 interview, Deputy Hernandez stated that decedent appeared to be 3 reusing to walk, which Deputies Prieto and Hernandez took as a 4 sign that decedent was acting in a passive aggressive manner. 5 (See Ex. B at 19.) Deputies Prieto and Hernandez picked decedent 6 up under each arm and carried him to the transportation lobby. 7 (See id.) Deputy Hernandez said that although decedent was 8 sweating, he did not make a request for medical attention. (Id.) 9 Deputy Prieto stated that the inmate cuffed to decedent told him 10 that the decedent might be sick, but that when Deputy Prieto 11 asked decedent if he needed medical attention the decedent did 12 not respond or request medical aid. (Id. at 21.) 13 Although plaintiffs’ counsel claimed at oral argument 14 that the protocol investigation report did not reveal whether 15 Deputies Prieto or Hernandez had actually dragged decedent from 16 his cell or had just carried him into the waiting room, Deputy 17 Hernandez’s interview clearly stated that decedent was “an inmate 18 that was housed in Intake three, in one of which he assisted in 19 walking from his housing unit to the transportation lobby.” (Id. 20 at 19.) 21 Accordingly, plaintiffs had sufficient information to 22 ascertain the role and actions of Deputies Hernandez and Prieto 23 in relation to the decedent when they filed their Third Amended 24 Complaint in March. Because plaintiffs did not act diligently in 25 seeking to add Deputies Prieto and Hernandez, the court finds 26 that plaintiffs lack good cause to do so now under Federal Rule 27 of Civil Procedure 16(b). 28 3. Deputy Khankhoune Kannalikham 1 Plaintiffs claim that the August 6, 2020 deposition of 2 Sergeant Baxter revealed for the first time that Deputy 3 Kannalikham forcibly grabbed defendant as he was in front of the 4 transport bus and forced him to enter despite his readily 5 apparent need for medical attention. (See Pls.’ Mot. to Amend at 6 7.) However, in Deputy Kannalikham’s interview in the protocol 7 investigation report, he clearly stated that he and Sergeant 8 Baxter had to place decedent on the bus. (See Ex. B at 4.) 9 Specifically, Deputy Kannalikham stated that he “stepped up 10 inside the bus, and assisted with pulling [decedent] up and in, 11 as Sergeant Baxter pushed him up by the waist.” (Id.) 12 Thus, plaintiffs had sufficient information to 13 ascertain the role and actions of Deputy Kannalikham in relation 14 to decedent when they filed their Third Amended Complaint in 15 March. Because plaintiffs did not act diligently in seeking to 16 add Deputy Kannalikham, the court finds that plaintiffs lack good 17 cause to do so now under Federal Rule of Civil Procedure 16(b). 18 4. Deputies Vince Chunn and Phillip Hicks 19 Plaintiffs claim that the deposition testimony of 20 Sergeant Baxter on August 6, 2020 revealed for the first time 21 that Deputies Chunn and Hicks, who were assigned to work the 22 transport bus to the courthouse, had the responsibility to ensure 23 the well-being of decedent while on the bus and forcibly grabbed 24 decedent and placed him on the bus despite his need for medical 25 aid. (See Pls.’ Mot. to Amend at 7; see also Pls.’ Reply at 8.) 26 However, Deputy Chunn’s interview in the protocol investigation 27 report made it clear that he was the driver of the van and that 28 he performed chest compressions on the decedent once the other 1 inmates in the van revealed that the decedent was unconscious. 2 (See Ex. B at 11.) The interview of Deputy Hicks likewise made 3 it evident that he was also assigned to the transport bus and was 4 involved in the medical aid to decedent after arriving at the 5 Stockton Courthouse. (See id. at 14.)4 6 Therefore, plaintiffs had sufficient information to 7 ascertain the roles and actions of Deputies Chunn and Hicks in 8 relation to decedent when they filed their Third Amended 9 Complaint in March. Because plaintiffs did not act diligently in 10 seeking to add Deputies Chunn and Hicks, the court finds that 11 plaintiffs lack good cause to do so now under Federal Rule of 12 Civil Procedure 16(b). 13 5. Sergeant Jason Wheelen5 14 Plaintiffs claim that through the depositions of 15 Sergeant Baxter and Deputy Felber, it became apparent for the 16 first time that Sergeant Wheelen knew of decedent’s medical 17 condition and anticipated arrival at the courthouse but failed to [18] 19 4 Plaintiffs are correct that there is some discrepancy between Deputy Chunn’s interview and that of Deputy Hicks. 20 Deputy Chunn states that Deputy Hicks assisted Sergeant Baxter in loading the decedent onto the transport van. (Ex. B at 11.) [21] Deputy Hicks maintains that Deputy Kannalikham and Sergeant 22 Baxter were those who loaded decedent onto the bus, an account that is corroborated by Deputy Kannalikham. (Ex. B at 4, 14.) 23 These differences in the accounts between Deputies Chunn and Hicks do not alter the court’s analysis. [24] 5 Plaintiffs failed to include the interview with [25] Sergeant Wheelen in the protocol investigation report in their motion. Though plaintiffs claim that the importance of Sergeant [26] Wheelen was also identified through videos they were provided in 27 the course of discovery, this evidence was likewise not provided to the court nor do plaintiffs give any indication as to when 28 these videos were produced. 1 prepare any medical attention for decedent prior to his arrival 2 and respond to a medical emergency for over 20 minutes. (See 3 Pls.’ Mot. to Amend at 7–8.) However, the interview of Deputy 4 Felber in the protocol investigation report stated that Sergeant 5 Baxter called ahead to the courthouse and advised that the 6 decedent was acting erratically, and that Sergeant Baxter wished 7 to alert the courthouse deputies in case the decedent pushed the 8 medical alert button in the cells. (See Ex. B at 9.) 9 The report went on to state that Deputy Felber advised 10 Sergeant Baxter not to bring the decedent to court because the 11 Stockton courthouse could not spare two deputies to accompany the 12 decedent to the hospital if he requested medical aid while at the 13 courthouse. (Id.) Sergeant Baxter informed Deputy Felber that 14 decedent was already on the bus and that if they wanted to refuse 15 the decedent at the courthouse, that would be Sergeant Wheelen’s 16 decision. (Id.) Deputy Felber stated that he spoke about 17 decedent with Sergeant Wheelen and that Sergeant Wheelen advised 18 he would assess as the bus arrived and determine whether they 19 would accept or refuse decedent. (Id.) 20 Therefore, plaintiffs had sufficient information to 21 ascertain the roles and actions of Sergeant Wheelen in relation 22 to decedent when they filed their Third Amended Complaint in 23 March. Because plaintiffs did not act diligently in seeking to 24 add Sergeant Wheelen, the court finds that plaintiffs lack good 25 cause to do so now under Federal Rule of Civil Procedure 16(b). 26 After determining whether the plaintiffs have been 27 diligent, the existence or degree of prejudice to the party 28 opposing the modification may supply additional reasons to deny a 1 motion to amend. Johnson, 975 F.2d at 609. However, no 2 appreciable prejudice to defendants other than Sergeant Goulart 3 will exist from adding him as a defendant since the court will 4 extend all the deadlines in this case by 60 days. Moreover, this 5 case is still in a relatively early state of discovery and the 6 proposed amendment is based on the same nucleus of facts and 7 witnesses. (See Pls.’ Mot. to Amend at 9.) 8 Accordingly, the court will grant the motion to amend 9 in part and allow plaintiffs to add Sergeant Anthony Goulart as a 10 defendant and dismiss Deputy Chue Vang as a defendant. The court 11 will deny the motion to amend as to the six other defendants that 12 plaintiffs seek to add. 13 B. Request to File Under Seal 14 In connection with the motion to amend, plaintiffs seek 15 to file under seal interviews from the San Joaquin County’s 16 protocol investigation because they allegedly contain 17 confidential information subject to protection pursuant to the 18 parties’ stipulated protective order and contain sensitive 19 information regarding the subject incident. (See Pls.’ Mot. to 20 Seal at 2.) Plaintiffs attached some of these interviews as 21 “Exhibit B” in support of plaintiffs reply to file a fourth 22 amended complaint. (See id.) 23 There is a strong presumption in favor of access unless 24 a particular court record is one traditionally kept secret. See 25 Kamakana v. City & Cty. Of Honolulu, 447 F.3d 1172 , 1178 (9th 26 Cir. 2006) (internal citations and quotations omitted). 27 Plaintiffs have done nothing to overcome this presumption. They 28 filed no brief in support of their position and only recited, 1 without providing further information or detail, that the 2 document contained confidential information pursuant to a 3 stipulated protective order between the parties and contained 4 sensitive information. (See Pls.’ Mot. to Seal at 2.) Because 5 plaintiffs have not carried their burden to demonstrate why 6 “Exhibit B” must be sealed, their request to file this document 7 under seal is denied. 8 IT IS THEREFORE ORDERED that plaintiffs’ Motion for 9 Leave to File a Fourth Amended Complaint (Docket No. 47) be, and 10 hereby is, GRANTED in part. Plaintiffs may add Sergeant Anthony 11 Goulart as a defendant and dismiss defendant Deputy Chue Vang. 12 The motion is DENIED as to all other defendants that plaintiffs 13 seek to add. Plaintiffs’ Request to File Under Seal Documents in 14 Support of Plaintiffs’ Reply to File a Fourth Amended Complaint 15 is DENIED WITHOUT PREJUDICE. 16 It is further ORDERED that the Scheduling Order of 17 December 30, 2019 (Docket No. 34) is hereby modified as follows: 18 1. The parties have until January 19, 2021 to complete 19 all discovery. All motions to complete discovery must be noticed 20 on the magistrate judge’s calendar in accordance with the local 21 rules of this court and so that such motions may be heard (and 22 any resulting orders obeyed) not later than January 19, 2021. 23 2. All motions, except motions for continuances, 24 temporary restraining orders, or other emergency applications, 25 shall be filed on or before February 19, 2021. 26 3. The Final Pretrial Conference is set for May 10, 27 2021 at 1:30 p.m. in Courtroom No. 5. 28 4. The jury trial is set for July 7, 2021 at 9:00 MAIS DOGUING IN RVUUUIEIOCI Yi PND Are PF AY VI Al 1 a.m. The parties estimate that the trial will last five to seven 2 days. 3 5. In all other respects the Scheduling Order of 4 December 30, 2019 remains in full force and effect. 5 IT IS SO ORDERED. 6 | Dated: October 7, 2020 be thom th Ad. 7 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE