(PC) Williams v. Baker

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 SHANNON WILLIAMS, Case No. 1:16-cv-01540-HBK 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT 13 v. (Doc. No. 92) 14 OFFICER BAKER, 15 Defendant. [16] 17 Before the Court is Plaintiff’s Motion for Leave to File Amended Complaint filed on May 18 3, 2021 (Doc. No. 92, “Motion”). Appended to the Motion is Plaintiff’s proposed Amended 19 Complaint. (Doc. No. 92-1). The Amended Complaint seeks to join the United States as a 20 defendant and add the claim of common law battery under the Federal Torts Claim Act1 21 (“FTCA”). (See generally Id.). Defendant filed an Opposition to the Motion. (Doc. No. 93, 22 “Opposition”). Plaintiff filed a Reply. (Doc. No. 94, “Reply”). For the reasons discussed below, 23 the Court grants Plaintiff’s Motion. 24 /// 25 /// 26 /// [27] 1 The United States waives sovereign immunity for certain tort claim that challenge actions by 28 federal officers. Title 28 U.S.C. §§ 1346 (b), 2674, 2680(h). 1 I. BACKGROUND 2 Plaintiff, a federal prisoner in the custody of the Bureau of Prisons (“BOP”), initiated this 3 action pro se by filing a form civil rights complaint under Bivens on October 13, 2016 while 4 confined at United States Penitentiary, Atwater, California. (Doc. No. 1). The then-assigned 5 magistrate judge screened the Complaint, finding the Complaint only stated cognizable claims 6 against Defendant Baker for excessive force and retaliation stemming from events that occurred 7 on October 13, 2014. (Doc. No. 12 at 6). Plaintiff’s Eighth Amendment claim for excessive use 8 of force remains pending.2 Defendant Baker, represented by the United States Attorney, 9 answered the complaint on June 27, 2017. (Doc. No. 26). The Court ordered a second screening 10 of the Complaint to determine if the complaint stated a Bivens claim considering Ziglar v. Abbasi, [11] 137 S.Ct. 1843 (2017). In connection with that second screening order, the Court appointed 12 counsel for Plaintiff for the limited purposes of briefing Ziglar. (Doc. Nos. 69, 70). The Court 13 determined that Plaintiff could proceed on his Bivens claim and afforded appointed counsel the 14 opportunity to continue to represent Plaintiff. (Doc. No. 82; Williams v. Baker, 487 F.Supp.3d 15 918 (E.D. Cal. 2020)). Appointed counsel filed a Notice of Its Intention to Continue 16 Representation and the Court, after holding a scheduling conference, issued a Case Management 17 and Scheduling Order on April 5, 2021 that, inter alia, set a May 3, 2021 deadline for moving to 18 join a party. (Doc. Nos., 83, 90, 91, 96).3 19 In support of his Motion to add the United States as a defendant under the FTCA, Plaintiff 20 cites to Rule 15(a)’s policy of favoring amendments with “extreme liberality’” and asserts no 21 undue prejudice will result to Defendants because of the amendment. (Doc. No. 92 at 4). 22 Further, Plaintiff contends that the FTCA claim is timely because it relates back to the original [23] 24 2 The Court granted Defendant’s exhaustion-based summary judgment motion concerning Plaintiff’s retaliation claim. (Doc. No. 50). The Court denied Defendant’s merit-based summary judgment claim 25 regarding the excessive use of force claim finding material facts in dispute. (Doc. No. 61). 3 On June 29, 2021, the Court issued an Amended Case Management and Scheduling Order setting forth 26 new deadlines to govern the case since the prior deadlines expired. An Amended Case Management and Scheduling Order was entered only to clarify and/or correct certain ambiguities in the earlier scheduling 27 order. (Doc. Nos. 91, 96). [28] 1 complaint and satisfies Fed. R. Civ. P. 15(c)(1)(B). (Id. at 5). In support of relation back, 2 Plaintiff notes the FTCA claim stems from the same excessive use of force conduct that gave rise 3 to Plaintiff’s Bivens claim against Defendant Baker. (Id. at 2). As evidence that the United States 4 received appropriate and timely notice, Plaintiff points to the fact that the original complaint was 5 timely served on the U.S. Attorney on April 28, 2017. (Id.); (see also Doc. No. 94 at 2). Further 6 proof of notice is established by the fact that the U.S. Attorney filed an answer to Plaintiff’s 7 original complaint on June 27, 2017. 8 Presumably to show futility, Defendant argues that the FTCA claim does not relate back 9 to the complaint and is statutorily time-barred. (See generally Doc. No. 93). Defendant disputes 10 that the United States knew or should have known that a FTCA claim would have been brought 11 against it but for a mistake concerning the proper party’s identity as required by Rule 15(c)(1)(C). 12 (Doc. No. 93 at 5). More specifically, Defendant argues Plaintiff’s FTCA claim against the 13 United States could have been included when he filed his original complaint because he could 14 have deemed the administrative tort claim denied. (Id. at 6). Instead, Plaintiff filed only a Bivens 15 claim that only may be brought against officers in their individual capacity, not against the United 16 States. (Id.). By implication, Defendant suggests Plaintiff’s action implied a conscious decision 17 to forego his FTCA claim. Defendant also points to the FTCA’s strict time requirements. (Id. at 18 7). Specifically, Defendant argues that a FTCA claim shall be “forever barred” unless: (1) it is 19 presented in writing to the appropriate Federal agency within two years after such claim accrues; 20 or (2) unless action is begun within six months after notice of the final denial of the claim by the 21 agency to which it was presented. 28 U.S.C. § 2401 ; (Id. at 3). Defendant maintains that, 22 because Plaintiff did not file an action within six months of the January 31, 2017 administrative 23 denial of his tort claim, his FTCA claim is “forever barred.” (Id. at 7). 24 /// 25 /// 26 /// 27 /// 28 /// 1 II. APPLICABLE LAW AND ANALYSIS 2 A. Federal Rule of Civil Procedure 15 3 On April 5, 2021, this Court issued a Case Management Scheduling Order pursuant to 4 Fed. R. Civ. P. 16 that, inter alia, set a May 3, 2021 deadline for moving to join a party.4 (Doc. 5 No. 91). On May 3, 2021, Plaintiff filed a motion requesting leave to file an amended complaint. 6 (Doc. No. 92). Based on the procedural posture of this case, this was the first opportunity 7 Plaintiff had to file a motion to amend the Complaint. Because Plaintiff filed the Motion within 8 the timeframe issued by the Court, Plaintiff is entitled to the “liberal amendment procedures 9 afforded by Rule 15.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 952 (9th 10 Cir. 2006). Rule 15 mandates this Court to “freely give leave when justice so requires.” Fed. R. 11 Civ. P. 15(1)(2). “In the absence of any apparent or declared reason—such as undue delay, bad 12 faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 13 amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of 14 the amendment, [or] futility of amendment” leave must be “freely given.” Foman v. Davis, 371 15 U.S. 178 , 182 (1962). When considering the Foman factors, case law cautions that “prejudice to 16 the opposing party . . . carries the greatest weight.” Eminence Capital, LLC v. Aspen, Inc. 316 F. 17 3d 1048, 1052 (9th Cir. 2003). 18 Fed. R. Civ. P. 15(c) “governs when an amended pleading ‘relates back’ to the date of a 19 timely filed original pleading and is thus itself timely even though it was filed outside an 20 applicable statute of limitations.” Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541 (2010). 21 An amended complaint that “seeks to change the party being sued relates back to the timely 22 pleading if it satisfies the requirements of Rule 15(c)(1)(C).” Tate v. United States, No. 15-9323, [23] 2019 WL 6799107 , at *4 (C.D. Cal. Sept. 18, 2019) (internal quotations omitted). “For an 24 amended complaint to relate back under Rule 15(c)(1)(C), (1) the basic claim must have arisen 25 out of the conduct set forth in the original pleading; (2) the party to be brought in must have [26] 4 In a telephonic status conference held on April 1, 2021, counsel for Plaintiff apprised both the Court and 27 defense counsel that he would seek to amend the complaint to add the United States as a defendant under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b)(1). (See Doc. No. 90). [28] 1 received such notice that it will not be prejudiced in maintaining its defense; and (3) that party 2 must or should have known that, but for a mistake concerning identity, the action would have 3 been brought against it.” Butler v. Nat’l Cmty. Renaissance, 766 F.3d 1191, 1202 (9th Cir. 2014). 4 “The second and third requirements must have been fulfilled within the time prescribed by Fed. 5 R. Civ. P. 4(m) … which as of December 1, 2015, was 90 days after the timely pleading was 6 filed. Plaintiff bears the burden of establishing that the requirements for relation back under Rule 7 15(c) have been satisfied.” Tate v. United States, at *5. 8 The Court finds Plaintiff has satisfied Rule 15. As to the Foman factors, Plaintiff has not 9 sought leave previously and the Court finds no bad faith nor prejudice. Arguably, only futility 10 would preclude granting leave to amend if the FTCA claim would be time-barred. The Court 11 finds no futility because Plaintiff’s FTCA claim relates back to satisfy Rule 15(c). In the 12 alternative, Plaintiff is entitled to equitable tolling on his FTCA claim. See infra. at 3-4. 13 Defendant does not object to the first or second factors under Rule 15(c)(1)(C). (See 14 generally Doc. No. 93). Regarding the first requirement, it is unquestionable that the FTCA claim 15 arises out of the same conduct and occurrence as the Bivens claim against Defendant Baker in the 16 original complaint. Similarly, as to the second requirement, the United States Attorney was 17 served with the complaint, after the Court completed screening and directed service by the U.S. 18 Marshal, within the 90-day period of Rule 4(m). (See Doc. No. 22 (directing service upon both 19 Defendant Baker and the United States citing to Fed. R. Civ. P. 4(i); Doc. No. 24 (evidencing 20 Process Receipt and Return on United States Attorney). 21 The Court finds the cases cited by Defendant in support of its argument that the United 22 States knew or should have known that a FTCA claim would have been brought against it 23 distinguishable. Regarding the third requirement, there is no actual or constructive evidence that 24 Plaintiff consciously decided to abandon his FTCA claim and strategically pursue only a Bivens 25 action against Defendant Baker. See Louisiana–Pacific Corp. v. ASARCO, Inc., 5 F.3d 431 , 434– 26 35 (9th Cir.1993) (district court did not abuse its discretion in denying a FRCP 15(c) motion 27 when there was “no mistake of identity, but rather a conscious choice of whom to sue”). Indeed, 28 at the time that Plaintiff commenced this action, the BOP had not yet denied his FTCA 1 administrative claim.5 Further, Plaintiff as a pro se inmate used the form complaint that provided 2 him with the ability to select from only two options: filing a civil right claim under 42 U.S.C. § 3 1983 or a Bivens action. (See Doc. No. 1). The form did not provide an option for a federal 4 inmate to select a FTCA claim. Despite the absence of the selecting a cause of action other than 5 one under § 1983 or Bivens, Plaintiff identified his first claim for relief as one for “excessive 6 force” referencing the Eighth Amendment’s “cruel and unusual punishment” language, but also 7 referenced the tort of “assault.” (Doc. No. 1 at 3). In the statement of facts in support of his first 8 claim, Plaintiff twice references the “assault” committed by Defendant Baker. (Id. at 4, 9 complaining other defendants “did nothing to stop” Defendant Baker “from assaulting the 10 Plaintiff” and took not action “until after Plaintiff was assaulted.”). And Plaintiff’s pro se status 11 warrants a liberal reading of his complaint. Draper v. Rosario, 836 F. 3d 1072, 1080 (9th Cir. 12 2016). Consequently, the Court finds the third requirement satisfied. Thus, because the FTCA 13 claim relates back to date the original complaint was filed, October 13, 2016, the FTCA claim 14 was filed within the FTCA statute of limitations. 28 U.SC. §§ 2675, 2401. 15 B. Claim Under FTCA is Subject to Equitable Tolling 16 Even if Rule 15(c)(1)(C) does not apply, Plaintiff’s FTCA claim may be timely if Plaintiff 17 can demonstrate an entitlement to equitable tolling. Despite its “forever barred” statutory 18 language, FTCA claims are subject to equitable tolling because § 2401(b) is not jurisdictional. 19 Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1040-41 (9th Cir. 2013). To be entitled to equitable 20 tolling, a plaintiff must “show three elements: timely notice to the defendant, lack of prejudice to 21 the defendant, and reasonable and good faith conduct by the plaintiff.” Neil through Cyprian v. 22 Park, 833 F. App’x 689 , 690 (9th Cir. 2021) (internal quotations omitted.). For a prior action to 23 satisfy the notice requirement, “the defendants in both actions generally need to be the same.” Id. 24 However, failure to state the same defendant(s) in the subsequent action is not dispositive, for 25 “timely notice may still exist if a defendant in the second claim was alerted to the need to gather [26] 5 As noted supra, the complaint was filed on October 13, 2016. Plaintiff’s FTCA administrative claim was 27 received by the BOP on February 20, 2015. Although a six-month presumptive period applies to claims, after which time the claim can be deemed denied, 28 U.S.C. § 2675 , Plaintiff was not advised that his 28 claim was denied until January 30, 2017. 1 and preserve evidence by the first claim even if not nominally a party to that initial proceeding.” [2] Id. Under governing precedent Plaintiff’s FTCA claim may be subject to equitable tolling. Thus, 3 in the alternative, the Court considers whether Plaintiff has satisfied the three elements required 4 for equitable tolling. 5 As to the notice element, as set forth infra, the record reflects the United States received 6 actual notice of Plaintiff’s tort claim. Plaintiff filed his administrative claim with the Federal 7 Bureau of Prisons (BOP) on February 20, 2015. This administrative claim was filed on Standard 8 Form 95 (“SF-95”). (Doc. No. 92 at 8-9). The BOP confirmed receipt of Williams’ submission 9 of SF-95 on March 5, 2015. (Doc. No. 92 at 10). “A claim under the FTCA shall be deemed to 10 have been presented when a Federal agency receives from a claimant … an executed Standard 11 Form 95 or other written notification of an incident, accompanied by a claim for money damages 12 in a sum certain.” 28 C.F.R. § 14 (a). Rooney v. United States, 634 F.2d 1238, 1243 (9th Cir. 13 1980); see also Wright v. City of Santa Cruz, No. 13-01230, 2014 WL 3058470 , at *5 (N.D. Cal. 14 Jul. 3, 2014) (holding that “an SF-95 … is the form used to present a claim to a federal agency 15 under the FTCA”). Therefore, the BOP received actual notice of Plaintiff’s FTCA claim when he 16 filed his SF-95 administrative claim. Additionally, the United States received timely notice of its 17 involvement in the civil proceedings when the Court ordered service of process on Defendant 18 Baker and the United States on April 18, 2017. The U.S. Attorney was served on April 28, 2017. 19 (Doc. No. 24 at 1). Therefore, despite Plaintiff’s failure to state the same defendant in the 20 subsequent action, timely notice nevertheless existed because the United States was “alerted to 21 the need to gather and preserve evidence.” As such, the Court finds Plaintiff demonstrates the 22 United States received timely notice of Plaintiff’s claim. 23 Regarding lack of prejudice, the Court finds the United States will not suffer undue 24 prejudice by being added as a defendant. Here, despite the age of this case, discovery is still on25 going, and no dates have been set for trial. (See Doc. Nos. 96, 97). Additionally, Defendant 26 Baker has agreed to reopen discovery. (See Doc. No. 92 at 4). In DCD Programs, Ltd. v. 27 Leighton, 833 F.2d 183, 188 (9th Cir. 1987), the Ninth Circuit found that that when a case is still 28 in the discovery stage, no trial is pending and a pretrial conference is not scheduled, then “there is 1 no evidence that [defendant] would be prejudiced by the timing of the proposed amendment.” 2 Furthermore, the additional FTCA claim arises out of the same alleged incident of excessive 3 force; therefore, the United States will not be prejudiced in their duty to defend against the claim. 4 In Azer v. Connell, 306 F.3d 930, 938 (9th Cir. 2002), the court held that defendants could not 5 claim prejudice when they were on notice of the possibility of the suit and when the gathering of 6 relevant evidence remained the same. Consequently, the Court finds Plaintiff has satisfied the 7 second prong by demonstrating that the United States will suffer no prejudice. 8 Finally, this Court finds that Plaintiff acted reasonably and in good faith throughout the 9 course of his civil proceedings. Plaintiff’s original complaint was filed pro se. He also filed his 10 administrative tort claim pro se. Counsel was assigned to Plaintiff on March 2, 2020 for the 11 initial purpose of briefing the Ziglar v. Abbasi issue. With assistance of counsel and following 12 the Court’s ruling that Plaintiff could proceed with his Bivens action, Plaintiff timely filed his 13 motion for leave to file an Amended Complaint. At no time has Plaintiff displayed bad faith to 14 the Court. Rather, Plaintiff filed both his initial Complaint and his administrative tort claim to the 15 best of his ability and, only after counsel was appointed did Plaintiff understand the appropriate 16 claims and defendants. Thus, the Court finds Plaintiff satisfies the third element because he 17 diligently pursued both administrative and Court remedies, which evidences reasonable and good 18 faith conduct. 19 Based upon the foregoing, the Court finds Plaintiff’s FTCA claim relates back to the 20 complaint and, in the alternative, is subject to equitable tolling. Thus, Plaintiff may proceed on 21 his amended complaint. 22 Accordingly, it is ORDERED: 23 1. Plaintiff’s Motion to Amend (Doc. No. 92) is GRANTED. 24 2. The Clerk of Court shall accept for filing and separately docket Plaintiff’s Amended 25 Complaint (Doc. No. 92-1) and correct the docket to reflect the names of the defendants identified 26 in Plaintiff’s Amended Complaint. 27 3. The Court will direct service on the additional named defendant by separate order. [1] | Dated: __August 24,2021 ooo. WN fereh fackt 3 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE