United States District Court, W.D. Washington
S. Zilly United States District Judge
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.
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("RFPs") based on standards no longer applicable in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
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).
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.
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), 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.
foregoing reasons, the Court ORDERS:
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.
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.
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.
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.
Clerk is DIRECTED to send a copy of this Order to all counsel
of record, to plaintiff pro se, ...