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Elmore v. Washington State Department of Corrections

United States District Court, W.D. Washington, Tacoma

June 5, 2015

ROBERTA ELMORE, Plaintiff,
v.
WASHINGTON STATE DEPARTMENT OF CORRECTIONS, WASHINGTON CORRECTIONS CENTER FOR WOMEN, et al., Defendants.

ORDER ON MOTION FOR EXTENSION OF TIME TO RESPOND TO MOTION FOR SUMMARY JUDGMENT AND TO AMEND SCHEDULING ORDER REGARDING DISCOVERY

J. RICHARD CREATURA, Magistrate Judge.

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR1, MJR3 and MJR4.

Before the Court is plaintiff's motion for extension of time to conduct discovery and to respond to defendants' motion for summary judgment (Dkt. 36). Defendants have filed a response ( see Dkt. 40; see also Dkt. 39) and plaintiff has filed a reply ( see Dkt. 41; see also Dkt. 43).

Because plaintiff has demonstrated good cause and has only recently acquired counsel, and in the interests of justice, the Court grants plaintiff's motion for extension to respond to defendants' motion for summary judgment in part (Dkt. 36). Plaintiff's supplemental response to defendants' motion for summary judgment (Dkt. 36-3) will be considered, but only with respect to plaintiff's Eighth Amendment claim regarding the alleged inappropriate denial of pain medication. The remainder of defendants' summary judgment motion has been addressed already by the Court ( see Report and Recommendation on Defendants' Motion for Summary Judgment, Dkt. 33, Order on Report and Recommendation and other motions, Dkt. 44).

In addition, because plaintiff has demonstrated good cause, and because the Court has granted plaintiff's request to file an amended complaint, plaintiff's motion for an extension of time for discovery is granted (Dkt. 36), but only as to claims not dismissed already by the Court ( see Dkt. 44).

FACTS

The Court previously has set out the facts of this case in a more comprehensive manner than the Court will discuss herein ( see Report and Recommendation on Defendants' Motion for Summary Judgment, Dkt. 33).

Plaintiff is an inmate at Washington Corrections Center for Women ("WCCW") who suffers from a rare bone disease, Fibrous Dysplasia, Polyostotic form. Plaintiff receives specialized treatment for this impairment every five or six months, but indicates that approximately four months after her treatment, the medication "is wearing out of [her] system" (Dkt. 23, Exhibit 4, pp. 33-34). When this occurs, plaintiff contends that she becomes more prone to falling, and that it hurts to walk.

In addition to other claims already addressed by this Court ( see Dkts. 33, 44), plaintiff claims that defendants have improperly denied her necessary pain medication and that, as a result, defendants have been deliberately indifferent to her serious medical need. In large part due to her previous pro se status, plaintiff concedes that she did not set out this particular aspect of her complaint with a large amount of factual allegations or legal argument ( see Dkt. 36; see also Complaint, Dkt. 6; Response to Motion for Summary Judgment, Dkt. 26). However, plaintiff did allege, for example, that she has continued to file reports about her legs being in pain against defendant ARNP Saari ( see Complaint, Dkt. 6, at p. 4). Defendant Dr. Colter admits that "WCCW health care providers have not prescribed all the pain medications [plaintiff] has requested but have prescribed those medications that are, in their professional judgment, necessary and appropriate" ( see Declaration of Mary L. Colter, M.D., Dkt. 23, Exhibit 2, pp. 2-3).

This Court previously recommended that defendants' motion for summary judgment on plaintiff's Eighth Amendment claim regarding the alleged inappropriate denial of pain medication be granted ( see Dkt. 33). The Court specifically based this recommendation on a finding that "[b]ased on the evidence plaintiff has presented, no reasonable jury would make [] [the] finding" that the denial of plaintiff's requested pain medication "was medically unacceptable under the circumstances, ' and was chosen in conscious disregard of an excessive risk to [the prisoner's] health''" (Dkt. 33, p. 18 ( quoting Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) ( quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citations omitted in original)). However, plaintiff recently has acquired representation and has submitted a large amount of evidence on this claim, as well as additional arguments in support of this claim ( see Dkt. 36). In the motion currently before the Court, plaintiff requests leave to file this additional evidence and moves for an extension of time to respond to defendants' motion for summary judgment, as filed by counsel ( see id. ).

Although the Court adopted the Report and Recommendation regarding the remainder of plaintiff's claims, the Court declined to adopt this particular recommendation that defendants' motion for summary judgment be granted on plaintiff's claim regarding alleged inappropriate denial of necessary pain medication ( see Dkt. 44, pp. 5, 7). The Court declined to adopt the recommendation for dismissal of this Eighth Amendment claim regarding medication because plaintiff has submitted "extensive briefing and additional evidence in support of this claim" ( see id. p. 5 ( citing Dkt. 36-3, 36-5, 36-6, 36-8))

DISCUSSION

I. Plaintiff's motion for an extension of time to file her Supplemental Response to defendants' Motion for Summary Judgment and for leave to file additional evidence

a. Parties contentions

As noted, plaintiff, who has been until recently proceeding pro se, has conceded that "her pleadings are not artful, " and that her original response to defendants' motion for summary judgment "does not submit to the court certain critical and available documentation supporting her case in an evidentiary form" ( see Motion for Continuance, Dkt. 36, pp. 1-2). Plaintiff contends that she had not been able to perform legal research, and that "significant legal authorities in her favor have not been brought to the court's attention" ( see id. p. 2). Plaintiff notes that she "has submitted to the court evidence of a long search for counsel to represent her, in an effort to seek a further continuance in order to effectively respond to [defendants'] dispositive motion" ( see id. ). Plaintiff notes that defendants replied in support of their motion, "observing that plaintiff's response to the summary judgment is only a restatement' of her allegations, without specifically providing evidence' to refute the [evidence] provided by [defendants]; further, that her submittal does not address the legal standards" ( id. ( quoting Dkt. 28, p. 2)). Plaintiff argues that "if counsel is not allowed to assist [plaintiff] in responding to this motion, she will not have had an opportunity to present on the merits her legal and factual issues, " and that defendants' arguments in their reply demonstrate that "a granting of summary judgment at this time would be more like granting a default" ( id. ). Plaintiff further supports her request by noting that no trial date has been set, and that although defendants have deposed plaintiff, she has not deposed any agents of defendants ( see id. ).

Plaintiff argues that pursuant to Fed.R.Civ.P. 6(b), the court may, for good cause, grant plaintiff's motion for an extension of time to respond to the motion for summary judgment if plaintiff failed to act because of excusable neglect ( see id. at p. 3). Plaintiff further argues that "her neglect is excusable because the terms and procedures of art, and specifically the elements of Civil Rights causes of action, the legal elements of qualified immunity, [and] the 8th Amendment standard of deliberate indifference.... are beyond her ability and the record shows that she has attempted to the best of her ability to submit reasoned arguments and evidence in accordance with the court rules and orders of this court" ( id. ). Plaintiff points out that she has "submitted to the court evidence of a diligent effort over a period of time to obtain counsel to address her deficiencies, thus, there is good cause in bringing this motion at this time" ( id. ).

Plaintiff adds that she has cooperated fully with discovery in providing defendants with her deposition and interrogatory answers ( see id. at p. 4). Plaintiff contends that she "has not had the ability and expertise to properly request DOC records, DOC standards, rules and regulations, and other documents, and she has not had the ability to note depositions of the named defendants and agents of defendant, or to investigate medical testimony for herself" ( id. ).

Defendants respond that plaintiff has "failed to establish that she is entitled to a second opportunity to submit evidence in response to Defendants' motion for summary judgment, " because, among other reasons, plaintiff "has wrongly asserted that she filed this case in early 2013;" and "has presented no evidence that she was either physically or mentally unable to perform legal research or file a brief in opposition to Defendants' summary judgment motion" (Response, Dkt. 40, p. 2). Defendants also take issue with plaintiff's "false" accusation that "the State' [] mis-stat[ed] the law on pendent jurisdiction, ' [when] pendent jurisdiction was never an issue in this case and was never briefed by Defendants" ( id. ). Defendants also take issue with plaintiff's accusation that defendants did not apprise the Court of evidence beneficial to plaintiff's case, noting that "plaintiff was obviously aware of this evidence and clearly had an opportunity to submit it to the court herself, " and noting that "Plaintiff has presented no authority to support her argument the Defendants were obligated to submit evidence on behalf of Plaintiff" ( id. ). "Lastly, Defendants [assert that they] will be prejudiced by having to address the additional evidence presented by Plaintiff, all of which could have been submitted previously by Plaintiff in response to Defendants' motion for summary judgment" ( id. ).

b. Plaintiff has demonstrated good cause for an extension

Plaintiff has been proceeding pro se in this matter until very recently, and also, has been incarcerated. In addition, plaintiff's assertion that she "has submitted to the court evidence of a long search for counsel to represent her" (Dkt. 36, p. 2) is supported by the record. In support of her motion for a continuance, plaintiff indicated that she diligently was seeking an attorney, and she attached evidence demonstrating that plaintiff contacted at least six attorneys/law firms who declined to represent plaintiff ( see Dkt. 26, pp. 1-2, 14 ("Appendix B")). Plaintiff also diligently sought multiple continuances in this matter ( see Dkt. 16, 19, 24).

Defendants provided a reply to arguments that plaintiff presented in her response to defendants' motion for summary judgment, but they also indicated, as noted by plaintiff, that plaintiff's "remaining arguments appear to be nothing more than a restatement of the assertions in Plaintiff's complaint and do not merit further response from Defendants" (Dkt. 28, p. 2). It appears to be undisputed that plaintiff's original response to defendants' motion largely was inadequate ( see id. ). The Court agrees with plaintiff that "a granting of summary judgment at this time would be more like granting a default" regarding her claim for alleged indifference to her serious medical need for pain medication (Dkt. 36, p. 2). This conclusion is supported by this Court's recommendation that this claim be dismissed "[b]ased on the evidence plaintiff has presented, " as such evidence was inadequate to support the requisite conclusion of law ( see Dkt. 33, p. 18). As the Court noted when declining to adopt this recommendation regarding dismissal of this claim, plaintiff now "submits extensive briefing and additional evidence in support of this claim" (Dkt. 44, p. ( citing Dkts. 36-3, 36-5, 36-6, 36-7, and 36-8)). The Court concludes that plaintiff has been sufficiently diligent and has satisfied the "good cause" requirement. The Court also concludes that this claim should be decided on the merits, and a review of plaintiff's Supplemental Response and her additional evidence will further this goal.

Regarding defendants' contention that they will be unfairly prejudiced by having to respond to plaintiff's evidence, plaintiff notes that no trial date has been set; that although defendants have deposed plaintiff, plaintiff has not deposed any agents of defendants; and, that plaintiff has cooperated by responding to defendant's interrogatories and providing her deposition ( see Dkt. 36, pp. 2, 4).

For the reasons stated, the Court concludes that plaintiff's conduct in this matter has reflected sufficient diligence to support a finding of good cause.

Therefore, the Court concludes that plaintiff has demonstrated good cause for an extension of time to respond to defendants' motion for summary judgment and for leave to submit additional evidence. This conclusion also serves to allow this Court to render a judgment on the merits of plaintiff's claim.

II. Plaintiff's motion for an extension of time for and a continuance of discovery

The parties make essentially the same arguments regarding plaintiff's motion to extend discovery as they make regarding the supplemental response. Plaintiff notes that she has not had the advantage of any formal discovery ( see Dkt. 36, p. 1). Plaintiff contends that she "has not had the ability and expertise to properly request DOC records, DOC standards, rules and regulations, and other documents, and she has not had the ability to note depositions of the named defendants and agents of defendant, or to investigate medical testimony for herself" ( id., p. 4).

Defendants' Response in Opposition to Plaintiff's Motion to Amend the Complaint, incorporated into their Response to this motion at bar, actually supports granting this motion of plaintiff for an extension of discovery, as defendants contend that if plaintiff's motion to amend is granted, they "will be required to conduct substantial additional discovery on Plaintiff's new claims, including taking another deposition of Plaintiff" ( see Dkt. 39, p. 4). Plaintiff's motion to amend her complaint was granted by the Court in the Order on Report and Recommendation ( see Dkt. 44, pp. 6, 7).

According to Fed.R.Civ.P. 16(b)(4), the Court may modify the scheduling order only for good cause. The "good cause" standard "primarily considers the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also Smith v. Kelly, Dock. Id. C11-623-RAJ-JPD, U.S. Dist. LEXIS 152946 (W.D.Wash. October 24, 2012) (unpublished opinion).

Here, as already discussed, and for the reasons stated, the Court concludes that plaintiff has satisfied the good cause requirement of Fed.R.Civ.P. 16(b)(4). The Court also concludes that granting plaintiff's motion to continue discovery will further the goal of deciding the case on the merits.

Plaintiff's motion for an extension for and to continue discovery (Dkt. 36) is granted only as to claims presented in her first amended complaint (when it is filed properly) ( see Dkt. 36-2, pp. 24-32), that were not dismissed in the Court's Order adopting in part the Report and Recommendation ( see Dkt. 44). Claims that were dismissed in the Court's Order, as stated in that Order, shall not be revisited or allowed to proceed to trial ( see Dkt. 44, p. 7).

CONCLUSION

For the reasons stated herein, it is hereby ORDERED:

(1) Plaintiff's motion for a continuance to respond to defendants' Motion for Summary Judgment (Dkt. 23) is GRANTED IN PART, only as to her Eighth Amendment claim of deliberate indifference regarding alleged inappropriate denial of pain medication ( see Dkt. 36).
(2) Plaintiff's motion for leave to file additional evidence is GRANTED (Dkt. 36).
(3) Defendants shall file any reply in support of their Motion for Summary Judgment (Dkt. 23) addressing plaintiff's Supplemental Response to their Motion for Summary Judgment (Dkt. 36-3) by June 19, 2015.
(4) Plaintiff's motion for an extension for discovery and to continue the case schedule is GRANTED (Dkt. 36) only as to claims that were not dismissed in this Court's Order on Report and Recommendation (Dkt. 44).
(5) The Court's pretrial scheduling order (Dkts. 15, 18, 21) is AMENDED as follows: Discovery deadline is extended to November 15, 2015, and the dispositive motion deadline is extended to December 15, 2015.
(6) The Clerk's office is directed to re-note Defendants' Motion for Summary Judgment (Dkt. 23) for June 19, 2015.

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