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Laigo v. King County

United States District Court, W.D. Washington

December 5, 2017

BENJAMIN ANDREW LAIGO, III, Plaintiff,
v.
KING COUNTY, et al., Defendants.

          ORDER

          Thomas S. Zilly United States District Judge

         By Order entered October 12, 2017, docket no. 68, the Court adopted in part, modified in part, and deferred in part the Report and Recommendation ("R&R") of the Honorable Mary Alice Theiler, United States Magistrate Judge, docket no. 65. The Court now enters the following order.

         Discussion

         In this case, plaintiff pursues claims under 42 U.S.C. § 1983 against King County and various Does who are custody or transport officers, supervisors, or health service providers at King County Jail. Plaintiff propounded several discovery requests to which King County filed blanket refusals to respond on the ground that they were not served at least thirty (30) days before the discovery deadline. See Def's Resps. (docket nos. 44, 45, & 46). King County also objected to certain requests for production ("RFPs") based on standards no longer applicable in light of the 2015 amendments to Federal Rule of Civil Procedure 26(b). See Order at 2 (docket no. 68). As to RFPs Nos. 3 and 8, which sought the transport times and schedules for plaintiff between November 8, 2015, and December 30, 2016, and the identities of persons involved in transporting plaintiff, including "cabulance" personnel, King County made no specific objection and provided no response. See Def's Resp. (docket no. 45).

         Magistrate Judge Theiler denied plaintiff's motion to compel discovery, see Order (docket no. 53), and plaintiffs subsequent "reply, " docket no. 56, was treated as a motion for reconsideration. The Court directed King County to file a response to plaintiff's motion for reconsideration indicating why it should not be required to answer RFP Nos. 3 and 8. See, Order at 4 (docket no. 68). In its response to the motion for reconsideration, King County acknowledges that its only basis for objection to RFPs Nos. 3 and 8 was their untimeliness. See, Def's Resp. at 1 (docket no. 70). King County further asserts that, on October 10, 2016, plaintiff was provided a list of King County Department of Adult & Juvenile Detention ("DAJD") transport officers who brought or accompanied him to Harborview Medical Center ("HMC") during the time period at issue. Williams Decl. at ¶ 4 & Ex. A (docket nos. 74 & 74-1). Plaintiff denies receiving such list prior to its filing on October 27, 2017, in connection with King County's response to the motion for reconsideration. See Pla.'s Mot. to Amend at 3 (docket no. 75).

         Regardless of whether the list was provided to plaintiff before he propounded RFPs Nos. 3 and 8, King County fails to explain why it could not have simply indicated in its discovery responses that the requested information had been supplied earlier to plaintiff. Moreover, although King County now indicates that cabulance drivers are not King County employees and that DAJD does not have a record of which cabulance drivers assisted in transporting plaintiff to HMC, see Williams Decl. at ¶ 4 (docket no. 74), King County did not provide such substantive information in response to RFPs Nos. 3 and 8.

         Plaintiff has moved for leave to amend to identify the Doe defendants, which presumably include the custody or transport officers, supervisors, and health service personnel involved in the incident on November 21, 2016, when plaintiff was unable to have a follow-up appointment with HMC's orthopedic department because a prerequisite CT scan had been erroneously scheduled for December 12, 2016. Plaintiffs motion for leave to amend was not noted, and King County has filed no response, but in its briefing on plaintiff's motion for reconsideration, King County raised a futility argument. King County contends that the failure to arrange for a CT scan prior to the appointment with HMC's orthopedic department was not an "intentional" error, see. Schroeder Decl. at ¶ 6 (docket no. 72), [1]and that transport officers could not have deviated from their schedule for November 21, 2016, to accommodate the delay associated with obtaining a CT scan, see Taylor Decl. at ¶¶ 3-5 (docket no. 73). Whether plaintiff can prove to the contrary remains to be seen, but the Court is persuaded that, pursuant to Federal Rule of Civil Procedure 15(a)(2), which guides the Court to "freely give leave [to amend] when justice so requires, " plaintiff should be allowed to try.

         Conclusion

         For the foregoing reasons, the Court ORDERS:

         (1) Plaintiffs motion for reconsideration, docket no. 56, is GRANTED in part, and to the extent that King County has not already fully answered RFP Nos. 3 and 8, it is DIRECTED to do so within fourteen (14) days of the date of this Order. The motion for reconsideration is otherwise DENIED.

         (2) Plaintiffs related motion for leave to amend to identify the Doe defendants, docket no. 75, is GRANTED. Any amended complaint shall be filed on or before January 31, 2018.

         (3) The deferred portions of the R&R, docket no. 65, are MODIFIED as follows: King County's motion for summary judgment, docket no. 47, is STRICKEN without prejudice to refiling after any amended complaint is filed.

         (4) This matter is REFERRED back to Magistrate Judge Theiler for further proceedings. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(3); Local Rule MJR4.

         (5) The Clerk is DIRECTED to send a copy of this Order to all counsel of record, to plaintiff pro se, ...


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