United States District Court, W.D. Washington, Tacoma
W. Christel United States Magistrate Judge
District Court has referred this 42 U.S.C. § 1983 action
filed by Plaintiff Curlin Pennick III to United States
Magistrate Judge David W. Christel. Presently before the
Court are Plaintiff's “Motion to Compel, FRCP 37
and FRCP 56(d)” (hereinafter “Motion to Compel
and Request for Extension”) (Dkt. 78) and Motion for
Leave to File Third Amended Complaint (hereinafter
“Motion to Amend”) (Dkt. 79). Also pending is
Defendant's Third Motion for Summary Judgment. Dkt. 71.
Court concludes allowing Plaintiff to file a third amended
complaint will cause undue delay and prejudice, and therefore
the Motion to Amend (Dkt. 79) is denied. The Court denies in
part and grants in part Plaintiff's Motion to Compel and
Request for Extension (Dkt. 78). The Court denies
Plaintiff's request to order Defendant to fully answer
two interrogatories because Plaintiff has failed to meet and
confer and Defendant has already responded to the discovery
requests. However, the Court grants Plaintiff's request
for an extension and provides Plaintiff with an extension of
time to file a response to Defendant's Third Motion for
Summary Judgment (Dkt. 71). Plaintiff's response to
Defendant's Third Motion for Summary Judgment is due on
or before June 21, 2019. Defendant's reply is due on or
before June 28, 2019 and Defendant's Third Motion for
Summary Judgment (Dkt. 71) is re-noted for June 28, 2019.
Second Amended Complaint, Plaintiff alleges his
constitutional rights were violated when he was deprived of a
kosher diet when Defendant failed to provide kosher eggs.
Dkt. 65. Plaintiff contends high fructose corn syrup in the
kosher diet caused him to suffer “gastrointestinal
maladies.” Dkt. 65 at 4-7. Plaintiff alleges he was
forced to choose between eating non-kosher eggs and going
hungry. Id. He also contends he was transferred in
retaliation for filing his civil rights complaint.
Id. at 5, 8. In the Motion to Amend, Plaintiff seeks
to eliminate the retaliation and high fructose corn syrup
claim and modify his kosher egg claim. Dkts. 79, 79-1.
initiated this lawsuit in April 2018. Dkt. 1. On August 14,
2018, the Court entered a Pretrial Scheduling Order, setting
a discovery deadline and a dispositive motion deadline. Dkt.
11. After the Court granted an extension of time, the
discovery period ended on April 5, 2019and dispositive
motions were due on or before May 21, 2019. Dkts. 11, 64.
August 15, 2018, Defendant moved for summary judgment. Dkt.
12. Plaintiff moved to amend his complaint to add claims,
which the Court granted, and denied Defendant's First
Motion for Summary Judgment as moot. Dkts. 30, 31, 32. On
January 15, 2019, Plaintiff again moved to amend his
complaint, which the Court granted. Dkts. 43, 64, 65. On
January 24, 2019, Defendant again moved for summary judgment,
which the Court denied as moot based on the filing of
Plaintiff's Second Amended Complaint. Dkts. 50, 64, 65.
April 9, 2019, Defendant filed a Third Motion for Summary
Judgment. Dkt. 71. In response, Plaintiff filed the Motion to
Compel and Request for Extension (Dkt. 78) and Motion to
Amend (Dkt. 79) on May 1, 2019. Dkt. 79. Defendant responded
requesting the Court deny the Motion to Compel and Request
for Extension (Dkt. 78) and Motion to Amend (Dkt. 79). Dkts.
81, 84. Plaintiff replied. Dkts. 83, 85.
Motion to Amend
seeks leave to amend his complaint a third time. Dkts. 79,
79-1 (proposed Third Amended Complaint). In the alternative,
Plaintiff seeks a continuance under Federal Rule of Civil
Procedure 56(d) based on his Motion to Compel and Request for
Extension (Dkt. 78). Dkt. 79.
to Rule 15(a) of the Federal Rules of Civil Procedure,
(1) Amending as a Matter of Course
A party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule ...