United States District Court, D. Nevada
CHARON L. BROWN, Plaintiff,
CLARK COUNTY DETENTION CENTER, et al., Defendants.
ORDER GRANTING MOTIONS FOR RECONSIDERATION AND TO
AMEND (ECF NOS. 122, 127)
P. GORDON, UNITED STATES DISTRICT JUDGE.
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). 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.
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.
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
MOTION FOR RECONSIDERATION
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.
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
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.
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
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.
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.
MOTION TO AMEND
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.
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.
Amending the Scheduling Order
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).
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.