“Whether to grant a 16 motion to amend depends on five factors: (1) bad faith, (2) prejudice to the opposing 17 party, (3) futility, (4) undue delay, and (5
How later courts described this case
- “Whether to grant a 16 motion to amend depends on five factors: (1) bad faith, (2) prejudice to the opposing 17 party, (3) futility, (4) undue delay, and (5
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 MARILYN MORTON, et al., Case No. 21-cv-1428-MMA-DDL
11 Plaintiffs,
ORDER GRANTING IN PART
12 v. PLAINTIFFS’ MOTION FOR
LEAVE TO FILE FOURTH
13 COUNTY OF SAN DIEGO, et al.,
AMENDED COMPLAINT
14 Defendants.
[Doc. No. 143]
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17 Marilyn Morton (“Ms. Morton”), as successor in interest to Decedent Joseph Earl
18 Morton’s (“Mr. Morton”) estate, as well as Ms. Morton and Dean Morton as individuals
19 (collectively, “Plaintiffs”), bring this action pursuant to 42 U.S.C. § 1983 against the
20 County of San Diego (the “County”), Samantha Macanlalay (“Macanlalay”), Bijan
21 Rahmani (“Rahmani”), Hosanna Alto (“Alto”), Matthew Berlin (“Berlin”), Liberty
22 Healthcare (“Liberty”), and Does 1–10. See Doc. No. 28 (“Third Amended Complaint”
23 or “TAC”). Plaintiffs now seek leave to file a Fourth Amended Complaint. The County,
24 Macanlaylay, and Alto (collectively, the “County Defendants”) filed and opposition, to
25 which Plaintiffs replied. See Doc. Nos. 154, 155. The Court found the matter suitable
26 for determination on the papers and without oral argument pursuant to Federal Rule of
27 Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 158. For the following
28 reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.
1 I. BACKGROUND
2 The parties are well-versed in the relevant facts, and so the Court does not recite
3 them here. For the purpose of this motion, the Court provides the following abbreviated
4 summary.
5 On May 8, 2020, Mr. Morton attempted suicide and was placed under a 72-hour
6 welfare hold pursuant to Cal. Welf. & Inst. Code § 5150. TAC ¶ 4. Mr. Morton was
7 released on May 10, 2020, and on May 11, 2020, attempted to commit a robbery. Id.
8 ¶¶ 4–5. Mr. Morton was arrested by County Sheriff’s Department deputies and booked
9 into custody at Vista Detention Facility (“VDF”). Id. ¶ 5. Plaintiffs allege that during his
10 arrest, processing, and evaluation, Mr. Morton made suicidal statements and attempted to
11 harm himself. Id. ¶¶ 6–11. Nonetheless, Mr. Morton was classified as a low risk for
12 suicide and cleared for mainline housing. Id. ¶¶ 9–12. On May 17, 2020, Mr. Morton
13 died by suicide. Id. ¶ 16.
14 II. LEGAL STANDARD
15 Rule 15(a) of the Federal Rules of Civil Procedure1 provides that leave to amend
16 pleadings “shall be freely given when justice so requires.” Fed. R. Civ. P. 15. However,
17 once a district court has issued a scheduling order under Rule 16 establishing a timetable
18 for amending pleadings, the liberal standards of Rule 15 no longer govern. See Johnson
19 v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Under Rule 16,
20 “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed.
21 R. Civ. P. 16(b)(4). Within this context, good cause is measured by the diligence of the
22 party seeking the amendment. Johnson, 975 F.2d at 609. “Although the existence or
23 degree of prejudice to the party opposing the modification might supply additional
24 reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for
25 seeking modification.” Id. at 609.
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1 In ruling on matters such as these, which involve the supervision of the pretrial
2 phase of litigation, “[t]he district court is given broad discretion.” Miller v. Safeco Title
3 Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985). If the district court finds a lack of diligence,
4 “the inquiry should end.” Johnson, 975 F.2d at 609. If, however, the movant meets the
5 Rule 16 burden, the Court proceeds to considering the motion under the usual standard of
6 Rule 15.
7 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice
8 so requires.’” AmerisourceBergen Corp. v. Dialysist West, Inc., 445 F.3d 1132, 1136 (9th
9 Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). Courts consider “undue delay, bad faith,
10 dilatory motive, repeated failure to cure deficiencies by previous amendments, undue
11 prejudice to the opposing party, and futility of the proposed amendment” in deciding
12 whether justice requires granting leave to amend under Rule 15. Moore v. Kayport
13 Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 370
14 U.S. 178, 182 (1962)); see also Cervantes v. Zimmerman, No. 17-cv-1230-BAS-NLS,
15 2019 U.S. Dist. LEXIS 39789, at *8 (S.D. Cal. Mar. 12, 2019) (“Whether to grant a
16 motion to amend depends on five factors: (1) bad faith, (2) prejudice to the opposing
17 party, (3) futility, (4) undue delay, and (5) whether the plaintiff has previously
18 amended.”) (citing Western Shoshone Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir.
19 1991)).
20 III. DISCUSSION
21 Plaintiffs seek leave to amend their pleading to name two previously unidentified
22 Does, as well as add a claim for violation of the Bane Act and to pursue municipal and
23 supervisory liability for the alleged Fourteenth Amendment violation.
24 At the outset, the Court must determine whether to apply Rule 16 or 15. Plaintiffs
25 initiated this action on August 9, 2021. See Doc. No. 1. Following several rounds of
26 motions to dismiss, see Doc. Nos. 6, 10, 21, Plaintiffs filed a Third Amended Complaint
27 on June 3, 2022, see TAC. On June 16, Defendants filed their Answers. See Doc.
28 Nos. 31, 32.
1 On August 5, 2022, Magistrate Judge Karen S. Crawford issued the first Rule 16
2 Scheduling Order. See Doc. No. 39. Relevant here, the amended pleadings deadline was
3 set for September 20, 2022. Id. Thereafter, Magistrate Judge David D. Leshner issued a
4 First Amended Scheduling Order, see Doc. No. 51, and a Second Amended Scheduling
5 Order, see Doc. No. 88. In neither Order did he reset the amended pleadings deadline.
6 Instead, he noted that “[e]xcept as explicitly modified herein, all deadlines, instructions
7 and mandatory procedures set forth in the Court’s August 5, 2022 Scheduling Order [Dkt.
8 No. 39] remain in effect.” Doc. No. 51 at 2.
9 Consequently, the deadline for Plaintiffs to seek leave to amend their pleading was
10 September 20, 2022. Doc. No. 39 at 1. Because the amended pleadings deadline lapsed
11 over a year ago, Rule 16 first applies.
12 A. Pleadings
13 It is necessary to begin with an overview of Plaintiffs’ pleadings and the Court’s
14 dismissal orders. By way of the First Amended Complaint, see Doc. No. 8, Plaintiffs
15 pleaded the following: (Claim 1) objective indifference in violation of the Fourteenth
16 Amendment against Macanlaylay, Rahmani, Alto, Berlin, and Does 1–10;
17 (Claim 2) inadequate suicide prevention/self-harm policy and training program in
18 violation of the Fourteenth Amendment against the County and Liberty; (Claim 3) gross
19 negligence/medical malpractice against all Defendants and Does 1–10; and
20 (Claim 4) wrongful death/survival against all Defendants and Does 1–10. As relevant
21 here, the Court dismissed Claim 2 for failure to identify a policy or custom to adequately
22 plead Monell liability. Doc. No. 18 at 14. The Court also dismissed Claim 4, noting that
23 a survival claim is not a separate cause of action. Id. at 16–17.
24 Thereafter, Plaintiffs filed the Second Amended Complaint, see Doc. No. 20,
25 alleging: (Claim 1) objective indifference in violation of the Fourteenth Amendment
26 against Macanlaylay, Rahmani, Alto, Berlin, and Does 1–10; (Claim 2) inadequate
27 suicide prevention/self-harm policy and training program in violation of the Fourteenth
28 Amendment against the County and Liberty; (Claim 3) negligence against all Defendants
1 and Does 1–10; (Claim 4) “survival action” against all Defendants and Does; and
2 (Claim 5) wrongful death against all Defendants and Does. Assessing the sufficiency of
3 the Second Amended Complaint, the Court dismissed Plaintiffs’ Monell claim (Claim 2),
4 to the extent it was based upon an express policy without leave to amend because
5 Plaintiffs had still failed to identify any policy, and had abandoned that theory of liability.
6 Doc. No. 27 at 6. The Court also dismissed Plaintiffs’ policy of inaction theory without
7 leave to amend to the extent the claim was based upon the failure to task a mental health
8 professional with intake evaluations as opposed to a registered nurse and lack of follow-
9 up after inmates are released from the Inmate Safety Program (“ISP”) housing. Id. at 8.
10 The Court found that Plaintiffs did not plead causation given that they pleaded
11 Mr. Morton was seen by a mental health professional and was nevertheless inaccurately
12 designated, and that Mr. Morton was never placed in ISP housing. Id. As to Plaintiffs’
13 claim that the County and Liberty were liable for failing to provide adequate mental
14 health care by not monitoring suicidal inmates, the Court found the claim sufficiently
15 plausible. Id. at 10. The Court also, again, dismissed Plaintiffs’ “survival action” claim,
16 noting that it was neither necessary nor appropriate. Id. at 16.
17 In their operative pleading—the Third Amended Complaint—Plaintiffs plead the
18 following: (Claim 1) objective indifference in violation of the Fourteenth Amendment
19 against Macanlaylay, Rahmani, Alto, Berlin, and Does 1–10; (Claim 2) inadequate
20 suicide prevention/self-harm policy and training program in violation of the Fourteenth
21 Amendment against the County and Liberty; (Claim 3) failure to summon medical care
22 against all Defendants and Does 1–10; (Claim 4) “survival action” against all Defendants
23 and Does; (Claim 5) wrongful death against all Defendants and Does; and
24 (Claim 6) professional negligence against all Defendants and Does 1–10. Defendants did
25 not challenge the sufficiency of the Third Amended Complaint but rather filed answers.
26 See Doc. Nos. 31, 32.
27 Plaintiffs now seek leave to pursue the following: (Claim 1) objective indifference
28 in violation of the Fourteenth Amendment against Macanlaylay, Rahmani, Alto, Berlin,
1 Janine Sparks, and Christopher Sparks; (Claim 2) inadequate suicide prevention/self-
2 harm policy and training program in violation of the Fourteenth Amendment against the
3 County and Liberty; (Claim 3) failure to summon medical care against all Defendants
4 except Melissa Quiroz; (Claim 4) “survival action” against all Defendants except Melissa
5 Quiroz; and (Claim 5) wrongful death against all Defendants except Melissa Quiroz;
6 (Claim 6) professional negligence against all Defendants except Melissa Quiroz;
7 (Claim 7) supervisory liability for/ratification of a violation of the Fourteenth
8 Amendment against Melissa Quiroz and the County; and (Claim 8) violation of the Bane
9 Act against Janine Sparks, Christopher Kagay, the County, Liberty, and Does. Doc.
10 No. 143-1 at Ex. 1 (“FAC”). The County Defendants oppose Plaintiffs’ motion. See
11 Doc. No. 154.
12 B. Analysis
13 To the extent Plaintiffs seek leave to amend their pleading to substitute Ms. Sparks
14 and Mr. Kagay as two previously named Does on their existing claims, there is good
15 cause and the applicable Foman factors favor amendment. According to Plaintiffs, they
16 “just discovered the identity and culpable conduct of Janine Sparks during her deposition,
17 which was noticed by Defendant Liberty Healthcare and taken on August 18, 2023.” Id.
18 Plaintiffs also contend that Ms. Sparks’ identity was “concealed from Plaintiffs.” Id. As
19 to Mr. Kagay, Plaintiffs contend that while they knew of his identity, they only learned of
20 his potential liability upon receiving the Critical Incident Review Board (“CIRB”)
21 documents produced on September 13, 2023. Id.
22 In opposition, the County Defendants point out that Plaintiffs have already
23 requested and received extensions of the Rule 16 Scheduling Order. See Doc. No. 154.
24 However, as noted above, none of these amended scheduling orders extended the
25 September 2022 amended pleadings deadline. The County Defendants’ remaining
26 arguments, see id. at 13–16, bear on the Rule 15 analysis. They do not dispute that
27 Plaintiffs only learned of Ms. Sparks’ identity by way of Liberty’s notice of her
28 deposition. See id. at 13. Nor do they dispute that Plaintiffs have been diligent in
1 pursuing discovery, including the CIRB records.
2 Turning to the Foman factors, as to this requested amendment, there is no indicia
3 of bad faith or undue delay. It is clear Plaintiffs have been diligent in pursuing this
4 relevant discovery and the basis for these proposed amendments did not become apparent
5 until Ms. Sparks’ August 18, 2023 deposition and production of the CIRB records on
6 September 13, 2023. It also appears on this record that the County Defendants would not
7 be prejudiced by amendment in this respect because these amendments are based upon
8 discovery that has already been taken.
9 Adding Ms. Sparks and Mr. Kagay on the preexisting claims also does not appear
10 to be futile. Ms. Sparks was a Mental Health Clinician at VDF from May 12, 2020
11 through May 16, 2020. FAC ¶ 16. Plaintiffs allege that Ms. Sparks admitted during her
12 deposition that it was her responsibility to perform the 24-hour suicide assessment
13 follow-up with Mr. Morton, and that she failed to do so. Id. According to Plaintiffs, the
14 internal investigation recorded that Ms. Sparks failed to perform the assessment because
15 she was afraid to go into the COVID quarantine housing module. Id. Ms. Sparks
16 allegedly testified that if she had assessed Mr. Morton, and had he expressed that he
17 planned to kill himself, she would have placed him in ISP housing. Id. ¶ 20.
18 According to Plaintiffs, Christopher Kagay was “a Liberty-employed provider”
19 working at VDF on May 13, 2020. Id. ¶¶ 17, 34. Plaintiffs allege that Mr. Kagay
20 intentionally cancelled Berlin’s 24-hour psychiatric sick call order and converted it to a
21 chart check. Id. ¶ 17. According to Plaintiffs, Mr. Kagay did this despite not physically
22 evaluating Mr. Morton and despite being aware that Mr. Morton had verbalized a plan to
23 commit suicide and was off medication. Id. Plaintiffs also contend that Mr. Kagay was
24 aware Mr. Morton had been receiving medication during his 5150, but did not order anti-
25 psychotic medication. Id. Mr. Kagay rescheduled the psychiatric sick call assessment for
26 May 20, 2020. Id. According to Plaintiffs, if Ms. Sparks and Mr. Kagay had “followed
27 policy,” Mr. Morton would have undergone two additional suicide follow-up
28 assessments, likely preventing his death. Id. ¶ 20. The Court finds that these allegations
1 are sufficient at this time. Accordingly, the Court GRANTS Plaintiffs’ motion to the
2 extent they seek leave to identify Ms. Sparks and Mr. Kagay as the previously named
3 Does on their preexisting claims.
4 Turning to the remainder of Plaintiffs’ proposed amendments, the Court finds that
5 Plaintiffs have not demonstrated good cause to permit amendment beyond the deadline.
6 As noted above, the Rule 16 good cause standard turns on Plaintiffs’ diligence; the Court
7 may modify the scheduling order “if it cannot reasonably be met despite the diligence of
8 the party seeking amendment.” Johnson, 975 F.2d at 609 (internal citation and quotation
9 marks omitted). Plaintiffs have not persuasively argued that they could not have timely
10 sought leave to amend to add these new claims.
11 Plaintiffs are required to demonstrate that they could not reasonably have met the
12 September 2022 deadline. Despite seeking several discovery extensions, it appears that
13 Plaintiffs never sought to extend this deadline. This weighs against a finding that
14 Plaintiffs have been diligent in enabling this Court to create a workable Rule 16
15 scheduling order. With respect to their asserted inability to meet the September 2022
16 deadline, Plaintiffs again point to Ms. Sparks’ August 2023 deposition and the September
17 2023 CIRB document production. But this discovery is not sufficiently tethered to
18 Plaintiffs’ new claims. Plaintiffs do not explain why they could not have timely pleaded
19 a Bane Act claim. In fact, it appears they could have. In the original Complaint,
20 Plaintiffs expressly pleaded that Defendants acted with the specific intent to violate
21 Mr. Morton’s constitutional rights. See, e.g., Doc. No. 1 ¶ 64. And yet only now, years
22 later, Plaintiffs seek to press a Bane Act claim, and interestingly only seek to press this
23 claim against the two newly-identified Does, the County, and Liberty. The other new
24 claim is a second Fourteenth Amendment Monell claim against Ms. Quiroz and the
25 County, which is entitled “Supervisory Liability/Ratification.” FAC at 69. So far as the
26 Court can surmise, Plaintiffs seek to pursue the theories of liability that Ms. Quiroz
27 and/or the County ratified Ms. Sparks’ conduct, see FAC ¶ 166, and failed to
28 supervise/discipline her, see id. ¶ 180, rejected the State Auditor’s recommendation that
1 follow-up be required, see id. ¶ 171, and concealed Ms. Sparks and Mr. Kagay’s
2 misconduct, see id. ¶ 172. This appears to be an attempt to attempt to take another bite at
3 the apple after the close of discovery and on the eve of the February 1, 2024 dispositive
4 motions deadline. See Doc. No. 167. Moreover, even assuming the CIRB reports
5 “evidence[] that the CIRB investigators knew about Defendants Sparks and Kagay’s
6 misconduct but intentionally concealed it from Internal Affairs and the CIRB Board,” see
7 Doc. No. 143-1 at 7, there is no genuine argument that Plaintiffs were unaware of
8 Ms. Quiroz’s identity and involvement earlier such that they could not have timely sought
9 leave to amend. Finally, as noted above, Plaintiffs were on notice of any deficiencies or
10 issues regarding their Monell claim since at least May 2022.
11 This is Plaintiffs’ fifth attempt at pleading their claims. The Court previously
12 issued two substantive Dismissal Orders in an effort to assist Plaintiffs with ascertaining
13 the viability of claims and theories of liability as they pertain to the facts as best
14 understood at the time. See Doc. Nos. 18, 27. The Court incorporates those Orders by
15 reference here. And yet, despite repeated instruction, Plaintiffs have once again put
16 before the Court a pleading that is inoperable as drafted. Plaintiffs have failed to do the
17 bare minimum to cure the previously identified deficiencies or otherwise conform their
18 pleading to comply with the Court’s Orders. For example, the Court has twice informed
19 Plaintiffs that there is no such thing as a “survival action” claim. And yet, in five
20 pleadings, including this proposed Fourth Amended Complaint, Plaintiffs have included a
21 claim, often separately, entitled “survival.” Plaintiffs have never responded to either the
22 County’s argument or the Court’s Orders that such a claim does not exist. And yet it has
23 persisted in the face of two Court Orders and despite a total absence of legal authority.
24 In a footnote in both the Third and Fourth Amended Complaints, Plaintiffs
25 supplied a footnote, seemingly in an effort to address this glaring issue:
26
On May 4, 2022, the Court issued an extensive 20-page ruling on the County’s
27
motion to dismiss. The Court granted in part and denied in part the County’s
28 motion. The Court dismissed portions of the second cause of action, third
1 cause of action, and the fourth cause of action in its entirety. In its Order, the
Court ruled this Complaint will be the operative complaint moving forward.
2
As such, due to the complexity of the Court’s Order, Plaintiff will maintain
3 the complaint as it was but for making the two changes directed by the Court.
See Dkt.27, 20:4-9; See TAC ¶ 24 and Sixth Cause of Acton.
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5 TAC at 2 fn.1; FAC at 2 fn.1.
6 Any complexity in the Court’s Dismissal Orders has been the result of Plaintiffs’
7 pleading.
8 Plaintiffs are seeking to expand the scope of this case on the eve of summary
9 judgment, and the new claims in the Fourth Amended Complaint are neither clearly nor
10 precisely pleaded. For example, in addition to the untenable “survival action” claim, see
11 FAC at 61, and the pressing of a claim for professional negligence against “All
12 Defendants,” despite having already been informed that this claim cannot be pursued
13 against the County, see Doc. No. 27 at 14, Plaintiffs’ proposed seventh cause of action is
14 another splattering of potential bases for liability against Ms. Quiroz and/or the County.
15 Simply put, this Fourth Amendment Complaint does not put Defendants on fair notice of
16 what their claims are and the grounds upon which they rest. Bell Atl. Corp. v. Twombly,
17 550 U.S. 544, 555 (2007). The Court therefore finds that Defendants would be
18 prejudiced by allowing amendment.
19 Diligently propounding discovery is not the same as diligently complying, or
20 attempting to comply, with Court Orders. In the latter respect, the Court finds that
21 Plaintiffs have not been diligent. Accordingly, because the Court finds that Plaintiffs
22 have not demonstrated good cause to amend the Scheduling Order under Rule 16, the
23 Court DENIES the remainder of Plaintiffs’ motion.
24 However, even assuming the Court were to find that Plaintiffs have demonstrated
25 good cause, the applicable Foman factors weigh against the remainder of Plaintiffs’
26 proposed amendment. For the reasons discussed above, Plaintiffs have unduly delayed
27 seeking amendment and the submission of yet another untenable pleading is not an
28 indicator of good faith. Further, the Court finds that Defendants would be prejudiced by
1 || permitting the addition of these new claims and theories of liability. Plaintiffs’ failure to
2 || plead or otherwise pursue these claims earlier, or name Ms. Quiroz as a defendant,
3 ||narrowed the scope of this case and discovery. Fact discovery is closed, and the case is
4 ||on the eve of summary judgment. See Doc. No. 167. To allow amendment beyond the
5 ||naming of two previously unidentified Does would, at this juncture, require yet another
6 || extension of discovery and the related deadlines. And, as noted above, Plaintiffs are
7 || already on their fourth pleading. Liberality on these facts is not warranted.
8 IV. CONCLUSION
9 Based upon the foregoing, the Court GRANTS IN PART and DENIES IN PART
10 || Plaintiffs’ motion for leave to amend. Plaintiffs are permitted to amend their pleading to
11 ||name Janine Sparks and Christopher Kagay as Defendants on their preexisting claims,
12 || which they pleaded against these individuals as “Does.” To the extent they wish to do so,
13 must file a Fourth Amended Complaint that complies with this Order on or before
14 || January 19, 2024. The Court DENIES the remainder of Plaintiffs’ motion.
15 IT IS SO ORDERED.
16 ||Dated: January 16, 2024
17 WMiaths LTUu- / hiphlr
18 HON. MICHAEL M. ANELLO
19 United States District Judge
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