The opinion
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7 UNITED STATES DISTRICT COURT
8 EASTERN DISTRICT OF CALIFORNIA
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10 ADAM SHARPE, Case No. 1:19-cv-00711-NODJ-EPG (PC)
11 Plaintiff, ORDER DENYING DEFENDANTS’
MOTION FOR LEAVE TO FILE JOINT
12 v. MOTION FOR SUMMARY JUDGMENT
BE DENIED
13 C. CRYER, et al.,
(ECF No. 164).
14 Defendants.
15 ORDER DENYING PLAINTIFF’S MOTION
TO QUASH SUBPOENA
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(ECF No. 167).
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Plaintiff Adam Sharpe is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s
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claims in his amended complaint alleging that Defendants C. Cryer, J. Lewis, S. Gates, and C.
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Nules were deliberately indifferent to his serious medical needs for specialized contact lenses
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in violation of the Eighth Amendment. (ECF Nos. 141, 143).
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Now before the Court are two motions: (1) a motion filed by Defendants Cryer, Gates,
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and Lewis requesting leave to file a second motion for summary judgment along with newly
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added Defendant C. Nules by the May 31, 2024 dispositive motion deadline set for Nules; and
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(2) Plaintiff’s motion seeking to quash a subpoena issued to his treatment provider, Natural
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Vision. (ECF Nos. 164, 167).
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1 For the reasons given below, the Court will deny Defendants’ motion to file a joint
2 motion for summary judgment. (ECF No. 164). And the Court will deny Plaintiff’s motion to
3 quash the subpoena. (ECF No. 167).
4 I. MOTION TO FILE JOINT MOTION FOR SUMMARY JUDGMENT
5 A. BACKGROUND
6 Before addressing Defendants’ motion to file a joint motion for summary judgment,
7 some background information is helpful.
8 Plaintiff filed this action on May 21, 2019, alleging deliberate indifference under the
9 Eighth Amendment to his serious medical need for specialized contact lenses that help with his
10 eye condition, Keratoconus. Relevant here, the case initially proceeded on Plaintiff’s deliberate
11 indifference claims against Defendants C. Cryer, J. Lewis, and S. Gates. (ECF No. 33).
12 Following discovery and extensive litigation, on May 5, 2021, Defendants Cryer, Gates,
13 and Lewis filed a motion for summary judgment arguing that they were not liable because they
14 were only involved in Plaintiff’s appeals at an administrative level, Plaintiff was approved for
15 and receiving treatment, and Defendants are entitled to qualified immunity. (ECF No. 65). The
16 undersigned issued Findings and Recommendations to deny Defendants’ motion for summary
17 judgment, (ECF No. 71), Defendants filed objections to the Findings and Recommendations
18 (ECF No. 75), and the District Judge adopted the Findings and Recommendations denying
19 summary judgment on November 8, 2021. (ECF No. 79).
20 Following the order denying summary judgment, the parties conducted a settlement
21 conference and the case failed to settle. (ECF No. 90).
22 Following the settlement conference, the parties continued to actively litigate the case.
23 On November 16, 2022, Plaintiff filed a motion to amend his complaint to add an additional
24 defendant, Cindy Nules, based on statements made by Defendant Lewis in a deposition that the
25 signature appearing next to the name of Defendant Lewis was actually someone else’s
26 signature—that of subordinate Cindy Nules. (ECF No. 115). The Court granted Plaintiff leave
27 to file an amended complaint adding C. Nules as a Defendant. (ECF Nos. 135, 141, 143). On
28 October 23, 2023, the Court issued a new scheduling order providing as follows: “This
1 schedule permits discovery only as to Plaintiff’s recently added claim against Defendant C.
2 Nules for deliberate indifference to Plaintiff’s serious medical needs—the Court is not
3 reopening discovery as to the claims against Defendants C. Cryer, S. Gates, or J. Lewis.” (ECF
4 No. 160). The Court set a non-expert discovery deadline of March 29, 2024, and a dispositive
5 motion deadline of May 31, 2024, for Defendant Nules only.
6 Additionally, on April 19, 2023, Plaintiff filed a motion for sanctions. (ECF No. 140).
7 In part, Plaintiff argued that the Court should issue sanctions against Defendants for failing to
8 provide him emails during discovery concerning Substance Abuse and Treatment Facility
9 (SATF) off-site schedulers’ attempts to schedule him medical treatment as required by a court
10 order that generally directed the parties to provide medical records received from third parties.
11 (See ECF No. 31). On May 10, 2023, Defendants filed an opposition, arguing that they had no
12 obligation to provide the emails during discovery and they provided them to Plaintiff after
13 discovering them in preparation for a settlement conference and that there was no prejudice to
14 Plaintiff. (ECF No. 142) (“Accordingly, there is no prejudice or surprise to Plaintiff attributable
15 to the disclosure of the emails.”). On May 30, 2023, the Court denied Plaintiff’s motion for
16 sanctions. (ECF No. 148). While the Court had concerns about the circumstances of
17 Defendants’ discovery of the emails, it ultimately concluded that there was no prejudice to
18 Plaintiff as to warrant sanctions.
19 B. DEFENDANTS’ MOTION FOR LEAVE TO FILE SECOND SUMMARY
20 JUDGMENT MOTION
21 On December 20, 2023, Defendants Cryer, Gates, and Lewis filed a motion for leave to
22 file a joint motion for summary judgment along with Nules by the May 31, 2024 deadline,
23 stating that they intend to rely on the emails to “show that Defendants, via their staff,
24 consistently tried to have Plaintiff seen by qualified medical professionals to receive his
25 specialty contact lenses.” (ECF No. 164, p. 3). Defendants argue that they should be permitted
26 to file another motion for summary judgement because (1) Plaintiff expanded the relevant
27 timeframe in his operative complaint and (2) a joint motion for summary judgment will
28 promote judicial economy.
1 On January 5, 2024, Plaintiff filed an opposition. (ECF No. 165). Plaintiff contends that
2 both arguments are misplaced. First, he argues that the relevant time period at issue has always
3 been when he received properly fitting lenses, which occurred in June 2020 after he filed his
4 initial complaint. (ECF No. 165, p. 2; see ECF No. 1, p. 3). Moreover, Plaintiff notes that
5 Defendants had this information all along, as he testified at his deposition that he did not
6 receive properly fitting lenses until June 2020. (See ECF No. 69-1, p. 78). Lastly, Plaintiff
7 argues that judicial economy would not be served by allowing Defendants to file yet another
8 motion for summary judgment.
9 On January 17, 2024, Defendants filed a reply, which generally reiterates their
10 arguments from their motion for leave to file a joint motion for summary judgment. (ECF No.
11 166). Defendants’ reply acknowledges that they “touched on care Plaintiff received outside the
12 period set forth in Plaintiff’s Complaint, and questioned him” about it at his deposition, but
13 argue that they “did not fully address” it “in their motion for summary judgment because these
14 claims were not relevant.” (ECF No. 166, p. 2). Further, they maintain that judicial economy
15 favors allowing them to make the same arguments as Nules.
16 B. LEGAL STANDARDS
17 “Nothing in Rule 56 prohibits successive motions.” Martinez v. High, 91 F.4th 1022,
18 1027 (9th Cir. 2024). However, “district courts have discretion to entertain successive motions
19 for summary judgment” and may “weed out frivolous or simply repetitive motions.” Hoffman
20 v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010) (internal citation omitted). “A renewed or
21 successive summary judgment motion is appropriate especially if one of the following grounds
22 exists: (1) an intervening change in controlling law; (2) the availability of new evidence or an
23 expanded factual record; and (3)[the] need to correct a clear error or prevent manifest
24 injustice.” Brazill v. California Northstate Coll. of Pharmacy, LLC, No. CIV. 2:12-1218 WBS,
25 2013 WL 4500667, at *1 (E.D. Cal. Aug. 22, 2013) (internal citations omitted).
26 Further, Rule 56(b) allows a court to set a deadline to file a motion for summary
27 judgment. Fed. R. Civ. P. 56(b). Here, the Court’s scheduling order, as amended, set a deadline
28 of May 24, 2021, for Defendants to move for summary judgment. (ECF Nos. 32, 60). While the
1 Court later issued another scheduling order, that order set a dispositive motion deadline of May
2 31, 2024, as to only Defendant Nules. (ECF No. 160).
3 Under Rule 16(b)(4), “[a] schedule may be modified only for good cause and with the
4 judge’s consent.” “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the
5 party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
6 Cir. 1992). And “[a]lthough the existence or degree of prejudice to the party opposing the
7 modification might supply additional reasons to deny a motion, the focus of the inquiry is upon
8 the moving party’s reasons for seeking modification” and “[i]f that party was not diligent, the
9 inquiry should end.” Id. Notably, the Ninth Circuit has found a lack of good cause where a
10 party was on notice of relevant factual information but instead waited until later to seek relief
11 with the Court. Kamal v. Eden Creamery, LLC, 88 F.4th 1268, 1277 (9th Cir. 2023)
12 C. ANALYSIS
13 With these legal standards in mind, the Court denies Defendants’ motion to modify the
14 scheduling orders to permit Defendants to file a second motion for summary judgment.
15 As to Defendants’ first basis for the request, that Plaintiff enlarged the period at issue in
16 Plaintiff’s amended complaint, the Court disagrees. Plaintiff’s initial complaint (filed in May
17 2019) clearly alleged that he had been denied medical care and had yet to receive properly
18 fitting lenses. (ECF No. 1, p. 3). Plaintiff’s amended complaint did not materially expand on
19 this issue. Rather, the amended complaint contains only one noteworthy sentence: “On June
20 2020 Plaintiff finally received well-fitting replacement lenses, making the total time in delay of
21 treatment (lack of proper lenses) three (3) years and two (2) months.” (ECF No. 141, p. 5). The
22 fact that Plaintiff has now included an end date to the incident does not expand the relevant
23 period at issue. Moreover, Defendants knew this information from Plaintiff’s deposition and
24 even referenced it in their motion for summary judgment. (See ECF No. 65-1, p. 7 “Sometime
25 between February and June 2020, Natural Vision was finally able to find a set of contacts that
26 properly fit Plaintiff. (DUF 11.)”).
27 Additionally, the timeline that Defendants have summarized of their efforts to schedule
28 medical care spans October 2016 to November 2018, dates that occurred long before Plaintiff
1 filed his complaint in May 2019. Defendants cite no emails that fall within the so-called
2 “expanded” timeframe in Plaintiff’s complaint.
3 The Court does not find Defendants’ second argument regarding judicial economy to be
4 persuasive. This case has been extensively litigated for approximately five years. Defendants
5 have already filed a summary judgment motion, which was extensively addressed by the
6 undersigned as well as the District Judge. Defendants made a strategic decision not to search
7 for certain evidence until after summary judgment was denied. In fact, Defendants themselves
8 state that did not seek the emails earlier, during the discovery period in this case “because they
9 thought they had sufficient information within their merits-based motion for summary
10 judgment to prevail.” (ECF No. 166, p. 3). To permit Defendants to file a second summary
11 judgment motion, based on documents they decided to locate after the first motion, would
12 improperly give Defendants two bites of the summary judgment apple based solely on their
13 own decision to delay searching for relevant evidence. Especially given the long time this case
14 has been pending, judicial economy would not be served by permitting an additional summary
15 judgment motion.
16 Furthermore, a second motion for summary judgment would not be as simple as
17 presenting the same arguments as Defendant Nules. Notably, as evidenced by Defendants’
18 initial motion for summary judgment, there are individualized issues as to what information
19 each Defendant knew and how each Defendant was involved in Plaintiff’s medical care, which
20 will require extended factual discussion and legal analysis to resolve. (See ECF No. 71 –
21 Findings and Recommendations addressing factual allegations against each Defendant
22 individually). It is not at all clear that any summary judgment motion regarding Defendants
23 Nules’ own knowledge and actions would be relevant to the other defendants.
24 The Court thus denies Defendants’ motion that requests a modification of the Court’s
25 scheduling orders to permit Defendants Cryer, Gates, and Lewis to file a second summary
26 judgment motion jointly with Defendant Nules, based on evidence Defendants sought after the
27 first summary judgment motion had been denied.
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1 II. MOTION FOR LEAVE TO QUASH SUBPOENA
2 Plaintiff moves to quash a subpoena, purportedly issued by all Defendants, which seeks
3 to subpoena records from one of his medical providers, Natural Vision. (ECF No. 167). Given
4 the Court’s order prohibiting further discovery from Defendants Cryer, Gates, and Lewis, the
5 Court issued an order requiring Defendants to file a response addressing which Defendants
6 issued the subpoena. (ECF No. 168). On February 16, 2024, Defendants filed an opposition,
7 arguing in pertinent part, that only Nules is subpoenaing the records and Plaintiff lacks standing
8 to challenge the subpoena. (ECF No. 169).
9 First, because the scheduling order permits Nules, who is represented to be the only
10 party issuing the subpoena, to conduct discovery, the Court’s scheduling order has not been
11 violated. Plaintiff made the decision to add Nules to this case and she has the right to conduct
12 her own discovery and make her own legal arguments based off such discovery independent of
13 the previous Defendants’ decisions.
14 Second, as Defendants argue, Plaintiff has no standing to challenge the subpoena to
15 Natural Vision, as he does not identify any interest he has in the information sought. Notably,
16 “a party has no standing to seek to quash a subpoena issued to someone who is not a party to
17 the action, unless the objecting party claims some personal right or privilege with regard to the
18 documents sought.” Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 973 (C.D. Cal.
19 2010) (quoting 9A Charles Wright & Arthur Miller, FEDERAL PRACTICE & PROCEDURE,
20 § 2459 (3d ed. 2008)). Plaintiff has offered nothing to indicate that he falls within an exception
21 to this rule; rather, his arguments are premised on the undue burden to him and the allegedly
22 redundant nature of the subpoenaed information. (ECF No. 167, p. 2).
23 III. CONCLUSION AND ORDER
24 For the reasons given, IT IS ORDERED that Plaintiff’s motion to quash a subpoena
25 (ECF No. 167) is denied.
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nen nee ne nn ne eR OE II IEE ED OE
1 And Defendants’ motion for leave to file a joint motion for summary judgment (ECF
2 || No. 164) is DENIED. !
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4 IT IS SO ORDERED.
Dated: _ February 26, 2024 [pe hey ——
6 UNITED STATES MAGISTRATE JUDGE
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97 To the extent the Court’s ruling on Defendant Nules’ summary judgment motion would apply clearly
and equally to the remaining Defendants, nothing in this order precludes Defendants from making an
28 || appropriate motion following the ruling on Defendant Nules’ summary judgment motion, which the
Court will address in due course.