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Pennick v. Dehven

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

May 22, 2019

CURLIN PENNICK III, Plaintiff,
v.
BARRY DEHVEN, Defendant.

          ORDER

          David W. Christel United States Magistrate Judge

         The 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.

         The 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.

         I. Background

         In the 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.

         Plaintiff 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, 2019[1]and dispositive motions were due on or before May 21, 2019. Dkts. 11, 64.

         On 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.

         On 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.

         II. Motion to Amend

         Plaintiff 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).[2] Dkt. 79.

         Pursuant 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 ...

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