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Brown v. Clark County Detention Center

United States District Court, D. Nevada

March 23, 2018

CHARON L. BROWN, Plaintiff,
v.
CLARK COUNTY DETENTION CENTER, et al., Defendants.

          ORDER GRANTING MOTIONS FOR RECONSIDERATION AND TO AMEND (ECF NOS. 122, 127)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         Plaintiff Charon Brown brought suit against defendant NaphCare, Inc. based on NaphCare's alleged deliberate indifference to his medical needs while he was a pretrial detainee at the Clark County Detention Center (CCDC).[1] ECF No. 1-2. He alleged that as a result of an assault by another inmate and correctional officers' brutality, he suffered injured shoulders for which NaphCare refused to treat him despite his many complaints of pain. Id. at 12. He also alleged that in August 2015, a medical provider told him that he needed an MRI and surgery but that it was not approved. Id. Brown originally was proceeding pro se, so his complaint was screened and his deliberate indifference claim was allowed to proceed. ECF No. 3.

         NaphCare filed a motion to dismiss and Brown did not respond to it. ECF No. 12. I therefore granted the motion as unopposed under Local Rule 7-2(d). ECF No. 22. Brown moved for reconsideration of that decision, but I denied his motion. ECF Nos. 26, 66. Brown again moved for reconsideration. ECF No. 77. Before I ruled on that motion, Magistrate Judge Koppe appointed pro bono counsel for Brown. ECF No. 96. Brown withdrew his motion for reconsideration so that he could prepare a proper motion through counsel. ECF No. 98.

         Brown now moves for reconsideration of the order dismissing NaphCare. He also moves to amend the complaint to clarify the original allegations and to add allegations related to conduct post-dating the original complaint. I grant both motions.

         I. MOTION FOR RECONSIDERATION

         Brown moves for relief under Federal Rule of Civil Procedure 60(b). However, my order dismissing NaphCare was not a final order within Rule 60(b)'s meaning because it did not dispose of the case as to all claims and parties and I did not enter a Rule 54(b) certification. Consequently, I consider Brown's motion under the standard for reconsideration of an interlocutory order.

         A district court “possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient” so long as it has jurisdiction. City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quotation and emphasis omitted); see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (citing Fed.R.Civ.P. 54(b)). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also LR 59-1(a). A district court may also reconsider its decision if “other, highly unusual, circumstances” warrant it. Sch. Dist. No. 1J, Multnomah Cty., Or., 5 F.3d at 1263.

         Brown argues the order dismissing NaphCare should be set aside because he did not receive it and so could not timely respond to it. He also argues that after counsel was appointed, he received new evidence, such as NaphCare's policies and procedures and documentation about NaphCare's denial of an MRI on Brown's shoulder that the treating medical provider had requested. Brown argues he could not have obtained these documents as a pro se litigant, as demonstrated by how difficult it was for his counsel to obtain them. He also argues he has viable claims against NaphCare that he should be allowed to pursue and that NaphCare's original motion to dismiss would have been denied on the merits if he had been able to oppose it.

         NaphCare responds that there is no newly discovered evidence supporting reconsideration because Brown could have previously obtained the information he now claims is newly discovered. NaphCare also contends I did not clearly err when granting the prior dismissal because Brown failed to respond to the motion and although Brown claimed he did not receive the motion, he did not deny receiving NaphCare's notice of non-opposition.

         I grant the motion to reconsider and set aside the dismissal. Brown swears under oath that he never saw the motion to dismiss until his later-appointed counsel provided it to him in August 2017. ECF No. 125-3. Further, Brown has presented evidence of post-complaint events supporting a claim against NaphCare, and he has presented evidence that it is unlikely he could have obtained evidence supporting his factual allegations prior to the dismissal. See ECF Nos. 108; 122-1; 122-4; 125-1; 125-2. Brown's counsel could not obtain NaphCare's policies and procedures without entering into a protective order. ECF No. 109. And NaphCare's own counsel did not obtain the document showing NaphCare denied the treating doctor's request for an MRI on Brown's shoulder until the day before NaphCare's Rule 30(b)(6) deposition in July 2017. ECF Nos. 122-2; 125-2.

         Finally, the policy of favoring resolution of disputes on their merits as opposed to technical failures weighs in favor of reconsideration. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors disposition of cases on the merits.”). My prior order dismissing NaphCare was based solely on Brown's failure to respond. Brown since has presented arguments on the merits of NaphCare's motion, to which NaphCare did not respond. Compare ECF No. 122 at 7-13 with ECF No. 124. Consequently, it appears that NaphCare concedes that its motion would not have succeeded if addressed on the merits. I therefore grant Brown's motion for reconsideration and I vacate my order dismissing NaphCare.

         II. MOTION TO AMEND

         Brown moves for leave to amend beyond the deadline for amending the pleadings in the scheduling order because he did not and could not have discovered evidence supporting some of his allegations until after the deadline to amend pleadings had expired. Brown also contends that there is no evidence of undue delay, bad faith, or prejudice to NaphCare, and he argues amendment would not be futile.

         NaphCare responds that Brown has failed to show good cause to amend the scheduling order because he was able to present his claims and could have obtained the new evidence during discovery before the deadline expired. NaphCare contends the mere fact that Brown was proceeding pro se at the time does not mean he could not have made the allegations in the amended complaint or conducted discovery to uncover the evidence now being relied on for amendment. NaphCare contends amendment would be futile because Brown has alleged only a difference of medical opinion, not deliberate indifference; Brown has not alleged facts showing a policy or practice of denying care based on cost considerations; and NaphCare provided Brown with regular and adequate care.

         A. Amending the Scheduling Order

         Where a party seeks to amend a pleading after expiration of the scheduling order's deadline for amending the pleadings, the moving party first must satisfy the stringent “good cause” standard under Federal Rule of Civil Procedure 16. AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 952 (9th Cir. 2006); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Rule 16(b)'s “good cause” standard centers on the moving party's diligence. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000); Johnson, 975 F.2d at 609. Although Rule 16 does not require a showing of prejudice, I may consider whether prejudice would result to the party opposing amendment. Coleman, 232 F.3d at 1295. Whether to modify the scheduling order's amendment deadline lies within my discretion. United States v. Dang, 488 F.3d 1135, 1142-43 (9th Cir. 2007).

         Brown has demonstrated good cause to amend the scheduling order's June 26, 2016 deadline. ECF No. 16 at 1. Brown did not obtain evidence supporting some of his allegations until after the deadline to amend had passed. Although NaphCare argues Brown could have obtained that material before the deadline passed, NaphCare's initial disclosures did not contain the record of the MRI denial or NaphCare's policies and procedures. NaphCare did not produce its policies and procedures until May 23, 2017, after the parties had entered into a stipulated protective order, and NaphCare did not produce the MRI denial until July 2017. ECF Nos. 127-1 at 2; 127-3; 127-7. NaphCare has not identified any prejudice from allowing amendment beyond the scheduling order's deadline. I therefore grant leave to move to amend beyond the deadline in the scheduling order.

         B. ...


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