Hollis v. Risenhoover

— 1 — — 2 — — 3 — — 4 — 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA — 7 — MARVIN GLENN HOLLIS, 8 Case No. 17-00326 BLF (PR) Plaintiff, 9 ORDER DENYING MOTION TO AMEND/CORRECT COMPLAINT; 10 DENYING MOTION FOR MEDICAL v. RECORDS; DENYING MOTION TO 11 REOPEN DISCOVERY; GRANTING MOTION TO CORRECT 12 DEFENDANTS’ NAMES; DENYING NURSE REISENHOOVER, et al., MOTIONS FOR EXPERT WITNESS 13 AND APPOINTMENT OF COUNSEL; Defendants. DENYING REQUEST FOR JUDICIAL 14 NOTICE; GRANTING MOTIONS FOR EXTENSIONS OF TIME — 15 — (Docket Nos. 114, 115, 117, 120, 121, 124, — 16 — 126, 129, 134, 136) — 17 — — 18 — Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to — 19 — 42 U.S.C. § 1983 against medical officials at Pelican Bay State Prison (“PBSP”), where — 20 — Plaintiff was formerly housed. Finding the complaint stated a cognizable Eighth — 21 — Amendment claim for deliberate indifference to serious medical needs, the Court issued an — 22 — order of service and directed Defendants to file a motion for summary judgment or other — 23 — dispositive motion. (Docket No. 53.) Defendants filed a summary judgment motion, — 24 — (Docket No. 77), to which Plaintiff filed opposition, (Docket No. 86), and Defendants filed — 25 — a reply, (Docket No. 87). The Court granted the motion with respect to Defendants S. — 26 — Risenhoover and N. Adam and dismissed the Eighth Amendment claims against them with — 27 — prejudice. (Docket No. 99.) The Court ordered remaining Defendants McCall and Afdahl 1 to file a renewed motion for summary judgment. (Id.) Defendants filed the renewed 2 summary judgment motion on October 1, 2019. (Docket No. 104.) 3 In the interest of justice, Plaintiff’s motion for an extension of time to file an 4 opposition, (Docket No. 129), is GRANTED such that the opposition filed on December 5 31, 2019, (Docket No. 137), is deemed timely filed. 6 Plaintiff has filed the following motions: motion to amend/correct the complaint 7 and for recusal, (Docket No. 114); motion for a court order to inspect and review his 8 medical records, (Docket No. 115); motion to request to reopen discovery, (Docket No. 9 117); motion to amend/correct Defendants’ names, (Docket No. 120); motion for expert 10 witness testimony, (Docket No. 121); another motion for appointment of counsel and 11 expert witness, (Docket No. 134); and a request for judicial notice, (Docket No. 136). 12 Defendants’ motions for extension of time to file a response to Plaintiff’s motions 13 are GRANTED. (Docket Nos. 124, 126.) Accordingly, their oppositions filed thereafter, 14 (Docket Nos. 127, 128, and 130), are deemed timely filed. 15 The Court addresses the pending motions below. — 16 — 17 DISCUSSION 18 A. Motion to Amend/Correct Complaint and Motion for Recusal 19 Plaintiff moves for leave to amend and file supplemental pleadings to include a 20 claim of conspiracy between Defendants McCall and Afdahl, and to include a claim of 21 conspiracy and retaliation against Defendant Adam, who has been dismissed from this 22 action, as being part of the conspiracy to interfere with Plaintiff’s prescribed medications 23 for his mental health needs. (Docket No. 114 at 3.) Plaintiff challenges the Court’s prior 24 order, (Docket No. 74), denying his previous motion for leave to amend to add claims 25 against current Defendants. (Id. at 2.) Lastly, Plaintiff asserts that the Court has a 26 “personal bias or prejudice against Plaintiff and is in favor of the defendants as evidenced 1 by the record before the court,” and requests recusal. (Id. at 5.) 2 Defendants filed an opposition, firstly asserting undue delay. (Docket No. 125.) 3 Defendants point out that Plaintiff believed as of February 23, 2016, that Dr. Adam was 4 involved in a conspiracy to change his mental health medication and part of the retaliatory 5 actions allegedly taken by Defendant McCall and Afdahl. (Id. at 4.) They point out that 6 according to his filings, Plaintiff had eleven months to consider his conspiracy theories and 7 supporting factual allegations before filing this action on January 23, 2017, but that he 8 excluded any reference to Defendant Adam’s alleged involvement in changing his mental 9 health medication in the original complaint. (Id., citing Docket No. 86 at 37, 39, 145-146.) 10 Defendants also assert that Plaintiff has prosecuted this action for the past three years 11 without making any attempt to change his allegations with respect to Dr. Adam, despite 12 filing five separate motions to amend his complaint. (Id., citing Docket Nos. 17, 44, 58, 13 65, 72.) Furthermore, Defendants point out that Plaintiff has failed to attach a proposed 14 amended complaint with the current motion to amend, and the motion itself contains no 15 evidence supporting a conspiracy or retaliation claim by any defendant. (Id. at 5.) 16 Secondly, Defendants assert that they will suffer undue prejudice if Plaintiff is allowed to 17 amend the complaint after summary judgment was granted with respect to the claims 18 against Dr. Adam and relitigate the claims against her. (Id. at 5-6.) In reply, Plaintiff 19 asserts that he moved to amend the complaint as early as August 9, 2017, along with a 20 proposed amended complaint, but that the Court never permitted the amendment. (Docket 21 No. 131 at 1.) 22 Rule 15(a) of the Federal Rules of Civil Procedure provides different ways to 23 amend, and these ways are not mutually exclusive. Ramirez v. Cty. Of San Bernardino, — 24 — 806 F.3d 1002, 1007 (9th Cir. 2015). Rule 15(a) provides that a party may amend its 25 pleading once as a matter of course, generally, within 21 days after serving it, and that in 26 all other cases, a party may amend its pleading only with the opposing party’s written 1 consent or the court’s leave. Fed. R. Civ. P. 15(a). Here, because the request to file an 2 amended complaint was filed nearly three years after Plaintiff filed the original complaint, 3 he can only be seeking leave to amend under the second option, i.e., at the court’s leave.1 4 Rule 15(a) is to be applied liberally in favor of amendments and, in general, leave 5 shall be freely given when justice so requires. See Janicki Logging Co. v. Mateer, 42 F.3d 6 561, 566 (9th Cir. 1994); cf. id. (attempt to amend complaint requiring amendment of 7 scheduling order under Fed. R. Civ. P. 16 must be based upon good cause). Leave need 8 not be granted where the amendment of the complaint would cause the opposing party 9 undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue 10 delay. Id. “In the absence of any apparent or declared reason–such as undue delay, bad 11 faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing 12 party by virtue of allowance of the amendment, futility of amendment, etc.–the leave 13 sought should, as the rules require, be ‘freely given.’” Hall v. City of Los Angeles, 697 14 F.3d 1059, 1073 (9th Cir. 2012) (internal citations omitted). 15 Defendants have declared a valid reason to deny the motion based on undue delay. 16 The Court has re-examined the first motion to amend/correct the complaint which was 17 filed six months after Plaintiff initiated this action and finds it contains no allegation of a 18 conspiracy against any defendant. (Docket No. 17.) Plaintiff mentions a conspiracy claim 19 in a second proposed amended complaint filed along with his motion for reconsideration of 20 the magistrate judge’s denial of that first motion to amend. (Docket No. 20-1.) However, 21 the proposed amendment asserts only a conspiracy claim between Defendants McCall and 22 Afdahl with regards to Plaintiff’s mental health medication and does not allege that 23 Defendant Adam was involved in that conspiracy.2 (Docket No. 20-1 at 24.) Thereafter, — 24 — 25 1 Plaintiff has not obtained the opposing party’s written consent, as Defendants have filed opposition to the motion. (Docket No. 125.) — 26 — 2 Plaintiff also asserted a conspiracy claim against Defendants Risenhoover and Adam 1 Plaintiff filed other motions to amend which never raised such a claim, (Docket Nos. 44, 2 58, 65, 72), nor did he make any such argument in opposing Defendant Adam’s motion for 3 summary judgment. (Docket No. 125 at 4.) Plaintiff provides no explanation why he did 4 not assert this specific claim against Defendant Adam in his earlier filings. Lastly, 5 Plaintiff has failed to provide, along his motion to amend, a proposed amendment 6 containing specific allegations to support what is otherwise a conclusory allegation of 7 conspiracy involving Defendant Adam. Accordingly, Plaintiff’s motion for leave to 8 amend to add a new conspiracy claim against Defendant Adam, (Docket No. 114), is 9 DENIED based on undue delay. See Janicki Logging Co., 42 F.3d at 566 . 10 With respect to Plaintiff’s request for recusal, motions to recuse a district court 11 judge fall under two statutes, 28 U.S.C. § 144 and 28 U.S.C. § 455 . The substantive 12 standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: Whether a 13 reasonable person with knowledge of all the facts would conclude that the judge’s 14 impartiality might reasonably be questioned. United States v. McTiernan, 695 F.3d 882 , 15 891 (9th Cir. 2012); Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993) (citation 16 omitted). Sections 144 and 455 ask whether a reasonable person perceives a significant 17 risk that the judge will resolve the case on a basis other than the merits. Clemens v. United 18 States Dist. Ct. for the Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005). The 19 reasonable person in this context means a well-informed, thoughtful observer, as opposed 20 to a hypersensitive or unduly suspicious person. Id. — 21 — 22 which he does not include in the instant motion to amend. (Docket No. 20-1 at 17.) Even if Plaintiff did attempt to add such a claim, it would be denied as futile since the Court 23 granted summary judgment in favor of Defendants Risenhoover and Adam on the Eighth Amendment claim against them because there was no genuine issue of material fact. 24 (Docket No. 99 at 11-12.) Conspiracy is not itself a constitutional tort under 42 U.S.C. § 1983 . Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc). It does not 25 enlarge the nature of the claims asserted by the plaintiff, as there must always be an underlying constitutional violation. Id. Accordingly, with no underlying constitutional 26 violation, Plaintiff cannot state a separate conspiracy claim under § 1983 against Defendants Risenhoover and Adam. Id. 1 As a federal judge is presumed to be impartial, a substantial burden is imposed on 2 the party claiming bias or prejudice to show that this is not the case. See United States v. 3 Zagari, 419 F. Supp. 494, 501 (N.D. Cal. 1976). Plaintiff questions this Court’s prejudice 4 against Plaintiff and in favor of defendants “is evidenced by the record before the court.” 5 (Docket No. 114 at 5.) Plaintiff makes further allegations of bias and prejudice in a later 6 filing. (Docket No. 122.) 7 The Court points out that after this matter was dismissed and judgment entered by 8 the magistrate judge originally assigned to the matter, (Docket Nos. 26, 27), the Court 9 reviewed the matter de novo and vacated the dismissal after finding that Plaintiff had met 10 the imminent danger exception under 28 U.S.C. § 1915 (g) to procced with this action. 11 (Docket No. 52.) Thereafter, the Court provided a reasoned decision for each motion filed 12 in this action. (Docket Nos. 74, 98, 99, 113.) Accordingly, it cannot be said that a 13 reasonable person would conclude from a review of the record that that the Court’s 14 impartiality might reasonably be questioned. See McTiernan, 695 F.3d at 891 . Nor has 15 Plaintiff presented any other evidence to overcome the presumption that this Court can be 16 fair and impartial. See Zagari, 419 F. Supp. at 501 . Plaintiff may appeal the decision to 17 the Ninth Circuit, but otherwise has no basis for moving to recuse the Court from this 18 matter. The motion for recusal is DENIED. 19 B. Motions for Court Order to Inspect and Review Medical Records 20 Plaintiff moves for a court order that allows him “to inspect and review his 21 medical/mental health records to discover and or gather necessary information” to prepare 22 an opposition to Defendants’ summary judgment motion, citing 28 U.S.C. § 1651 . 23 (Docket No. 115.) The Court notes that Plaintiff filed an opposition on December 31, 24 2019. (Docket No. 137.) Accordingly, the motion is DENIED as moot. 25 C. Motion to Reopen Discovery 26 Plaintiff moves to reopen discovery under Federal Rule of Civil Procedure 16 with 1 respect to his claims against Defendants Risenhoover and Adam. (Docket No. 117.) Rule 2 16 has to do with pretrial conferences, scheduling, and case management while a matter is 3 pending. Fed. R. Civ. P. 16. Accordingly, the Court finds no basis for reopening 4 discovery under this rule particularly when the claims against Defendants Risenhoover and 5 Adam have already been thoroughly litigated. This motion was filed on October 25, 2019, 6 which is nearly three months after the Court granted summary judgment in favor of these 7 Defendants on July 22, 2019. (Docket No. 99.) As Defendants argue in opposition, 8 Plaintiff fails to show due diligence in obtaining these records before the Court granted 9 Defendants’ motion. (Docket No. 128 at 4.) Furthermore, the Court already considered 10 Plaintiff’s motion for reconsideration on the matter and denied it. (Docket No. 113.) 11 Nowhere in that motion did Plaintiff assert need for additional discovery. (Docket No. 12 100.) Plaintiff may appeal the decision to the Ninth Circuit, but at this juncture, the Court 13 finds no basis to grant the motion to reopen discovery on the claims against Defendants 14 Risenhoover and Adam. The motion is DENIED. 15 D. Motion to Amend/Correct Defendants’ Names 16 Plaintiff requests that the names of the remaining defendants in this action be 17 corrected to reflect the following: 1) Mariposa McCall, M.D., and 2) Jennifer Afdahl. 18 (Docket No. 120.) The motion is GRANTED. The Clerk shall update the docket with the 19 correct names of Defendants as shown in Plaintiff’s motion. 20 E. Motions for an Expert Witness and Appointment of Counsel 21 Plaintiff has filed additional motions for the Court to appoint an expert witness, 22 (Docket No. 121), and for appointment of counsel, (Docket No. 134). (See Docket Nos. 23 63, 83, 110.) Plaintiff asserts that there are “scientific issues involved” that are outside his 24 understanding and knowledge. (Docket No. 134 at 1.) 25 Plaintiff has been made aware several times that there is no constitutional right to 26 counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses 1 the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981); Rand v. 2 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 3 action), withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 4 1998) (en banc). The decision to request counsel to represent an indigent litigant under § 5 1915 is within “the sound discretion of the trial court and is granted only in exceptional 6 circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). The difficulties 7 Plaintiff raises again in this recent motion, which are the same as in his prior motions, are 8 no different than those any other prisoner faces. Accordingly, the motion is DENIED 9 without prejudice for lack of exceptional circumstances. See Agyeman v. Corrections 10 Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 11 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 12 F.2d 1328 , 1331 (9th Cir. 1986). 13 Plaintiff continues to assert mental health issues as a basis for appointment of 14 counsel. As he has previously been advised, generally, a plaintiff that shows at least some 15 ability to articulate his claims is not entitled to appointment of counsel, regardless of 16 whether he has mental and physical health problems or is incarcerated. See, e.g., Warren 17 v. Harrison, 244 Fed. Appx. 831, 832 (9th Cir. 2007) (holding that an inmate plaintiff who 18 had alleged mental illness did not qualify for appointment of counsel because he 19 competently presented his claims and attached three pertinent exhibits); Miller v. 20 McDaniel, 124 Fed. Appx. 488, 490 (9th Cir. 2005) (holding that an inmate plaintiff with 21 mental health problems was not entitled to appointment of counsel because he 22 demonstrated an ability to articulate his claims pro se); Palmer v. Valdez, 560 F.3d 965 , 23 970 (2009) (holding that an inmate plaintiff who was suffering pain from a surgery and 24 had limited access to legal documents did not require appointment of counsel because he 25 did a good job presenting his case, was well organized, made clear points, and presented 26 evidence effectively). Here, as in the cases cited above, Plaintiff has shown an ability to 1 articulate his claims and litigate this action in spite of any mental health issues: Plaintiff 2 seeks damages for Defendants’ deliberate indifference to his serious medical needs. 3 (Compl. at 3.) Furthermore, this issue is not particularly complex. The issue at this stage 4 does not involve “scientific issues,” as Plaintiff asserts. Rather, deliberate indifference 5 involves the subjective state of mind of Defendants, which is not complex nor requires 6 expert testimony. Accordingly, Plaintiff’s requests for an expert witness and appointment 7 of counsel are DENIED without prejudice for lack of exceptional circumstances. See 8 Agyeman, 390 F.3d at 1103 ; Rand, 113 F.3d at 1525 ; Terrell, 935 F.2d at 1017 ; Wilborn, 9 789 F.2d at 1331. This denial is without prejudice to the Court’s sua sponte appointment 10 of counsel at a future date should the circumstances of this case warrant such appointment. 11 F. Request for Judicial Notice 12 Plaintiff has a filed a request for judicial notice of certain federal caselaw, 13 information from a publication regarding medical diagnosis, and briefs filed in this matter. 14 (Docket No. 136.) Federal Rule of Evidence 201(b) permits a court to notice an 15 adjudicative fact if it is “not subject to reasonable dispute.” Khoja v. Orexigen 16 Therapeutics, 899 F.3d 988, 999 (9th Cir. 2018). “A fact is not subject to reasonable 17 dispute if it is generally known, or can be accurately and readily determined from sources 18 whose accuracy cannot reasonably be questioned.” Id. (quoting Fed. R. Evid. 201(b)(1)- 19 (2)) (internal quotation marks omitted). Taking judicial notice of matters of public record 20 does not convert a motion to dismiss into a motion for summary judgment. Id. A court 21 may not, however, take judicial notice of disputed facts in public records. Id. at 1000-01 . 22 The caselaw set forth by Plaintiff do not establish facts but legal arguments, and the 23 book and the briefs filed in this matter contain material that are still subject to reasonable 24 dispute. Accordingly, the motion for judicial notice is DENIED because Plaintiff has 25 failed to establish that the documents set forth do not contain material that is “not subject 26 to reasonable dispute.” Fed. R. Evid. 201(b). 1 || G. Motions for Extension of Time 2 As already discussed above, Plaintiff’s motion for extension of time, (Docket No. 3 129), and Defendants’ motions for extensions of time, (Docket Nos. 124, 126), are 4 GRANTED. See supra at 2. — 5 — 6 CONCLUSION 7 For the reasons discussed above, Plaintiff's motion to amend/correct the complaint 8 || and motion for recusal, motion for a court order to inspect and review his medical records, 9 || motion to reopen discovery, motion for expert witness, motion for appointment of counsel, 10 || and request for judicial notice are DENIED. (Docket Nos. 114, 115, 117, 121, 134, 136.) 11 Plaintiffs motion to correct Defendants’ names is GRANTED. (Docket No. 120.) 2 The Clerk shall update the docket with the correct names of Defendants as follows: 1) 13. || Mariposa McCall, M.D., and 2) Jennifer Afdahl. S 14 Plaintiffs motion for an extension of time, (Docket No. 129), and Defendants’ 3 15 motion for extensions of time, (Docket Nos. 124, 126), are GRANTED. A 16 Defendants’ reply to Plaintiff's opposition to their summary judgment motion has 3 17 || not yet been filed. In the interest of justice, Defendants shall be granted an extension of 18 || time to do so. The reply shall be filed no later than fourteen (14) days from the date this 19 || order is filed. The matter shall be deemed submitted as of the date the reply brief is due. 20 This order terminates Docket Nos. 114, 115, 117, 120, 121, 124, 126, 129, 134, and 71 136. 22 IT IS SO ORDERED. 23 || Dated: _January 21, 2020 fh joonan) 54 BETH LABSON FREEMAN United States District Judge 25 Order Addressing Pending Mots. PRO-SE\BLF\CR.17\00326Hollis_motions4 — 26 — 27 10