reviewing for abuse of discretion where plaintiffs sought to amend their complaints after scheduled deadline had passed
How later courts described this case
- reviewing for abuse of discretion where plaintiffs sought to amend their complaints after scheduled deadline had passed
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCHELLE NISHIMOTO, individually No. 19-55418
and as successor in Interest to Jason
Nishimoto, D.C. No.
3:16-cv-01974-BEN-LL
Plaintiff-Appellant,
v. MEMORANDUM*
COUNTY OF SAN DIEGO; et al.,
Defendants,
ETHAN MIEDECKE; et al.,
Defendants,
and
ANNE BRANTMAN; CORRECTIONAL
PHYSICIANS MEDICAL GROUP, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted September 2, 2020
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: IKUTA and BENNETT, Circuit Judges, and WOODLOCK,** District
Judge.
Rochelle Nishimoto appeals the district court’s grant of summary judgment
to Correctional Physicians Medical Group (“CPMG”) and CPMG Nurse
Practitioner Anne Brantman.1 Nishimoto also appeals the district court’s denial of
her motion for reconsideration under Federal Rule of Civil Procedure (“Rule”)
60(b)(2) and request to add three CPMG officials to the lawsuit. Her lawsuit arises
from the suicide of her son, Jason Nishimoto (“Jason”), while he was in custody at
the Vista Detention Facility.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse
in part, and remand.
We reverse the district court’s grant of summary judgment because, viewing
the evidence in the light most favorable to Nishimoto, there is a genuine issue of
material fact as to whether Nurse Brantman recommended that Jason be transferred
to a medical observation cell and communicated Jason’s suicide risk to the medical
staff.2 See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,
**
The Honorable Douglas P. Woodlock, United States District Judge for
the District of Massachusetts, sitting by designation.
1
The other defendants, the County of San Diego (“County”) and six County
employees, were dismissed after settling with Nishimoto.
2
Because Nurse Brantman and CPMG make no argument that these facts
are not material, we assume without deciding that they are material with respect to
Nishimoto’s claims.
2
630 (9th Cir. 1987). Nurse Brantman’s detailed evaluation note made no
recommendation to move Jason to a medical observation cell and noted no
conversation in which she had made such a recommendation. And even though
Nishimoto had told Nurse Brantman that Jason had taken a bottle of Klonopin pills
to kill himself,3 Nurse Brantman’s note mentioned no suicide risks. Further, it is
undisputed that Jason was never moved to a medical observation cell, and that the
medical staff had followed Nurse Brantman’s housing recommendation on every
other occasion except in Jason’s case. Construing this evidence in the light most
favorable to Nishimoto, a rational trier of fact could find that Nurse Brantman
never recommended that Jason be moved to a medical observation cell or relayed
concerns about any suicide risks. See id. at 631.
Though we find that genuine issues of material fact exist based on the
evidence that the district court did not exclude, we note that the district court erred
in sustaining objections to Deputy Johnson’s deposition testimony regarding a
conversation he overheard between Nurse Brantman and Nurse Felizardo.4 That
Deputy Johnson may not have been paying attention to the entirety of the
3
Nurse Brantman disputes this fact, but we accept Nishimoto’s account as
true for summary judgment purposes.
4
It also appears that the district court improperly excluded a portion of
Deputy Johnson’s deposition testimony in which he testified that Nurse Brantman
never told him about Jason’s suicide risks. Deputy Johnson clearly had personal
knowledge about what Nurse Brantman told him.
3
conversation goes to the weight not the admissibility of his testimony, especially
since he specifically testified to certain parts of the conversation.5
In sum, the district court erred in finding that it was undisputed that Nurse
Brantman had recommended moving Jason to a medical observation cell and
relayed her concerns to medical staff about Jason’s suicide risks. Because the
district court granted summary judgment to Nurse Brantman and CPMG based on
these incorrect findings, we reverse the district court’s summary judgment order.6
Before discovery had been completed, Nishimoto and CPMG jointly moved
to dismiss the two § 1983 claims against CPMG with prejudice. The court granted
the joint motion (“Order Granting the Joint Motion”). After receiving new
discovery materials from the County defendants, Nishimoto filed a motion for
reconsideration under Rule 60(b)(2) to undo the Order Granting the Joint Motion
and requested leave to add three CPMG officials to the lawsuit.7 The court denied
5
Because we reverse based on the evidence that the district court did not
exclude, we need not decide if the district court erred in excluding other evidence.
6
We decline to reach Nurse Brantman’s qualified immunity argument, as
she raises it for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985
n.2 (9th Cir. 2009) (per curiam). We leave this issue to the district court, should
Nurse Brantman raise it on remand. Nurse Brantman also argues that, based on her
expert’s report, it is undisputed that she met the standard of care. But her expert’s
conclusion depended on the material disputed assumption that Nurse Brantman
recommended moving Jason to a medical observation cell. Thus, her argument
fails. Similarly, we reject Nurse Brantman’s causation argument because it rests
on her expert’s report.
7
Like the district court, we assume that Nishimoto properly brought her
reconsideration motion under Rule 60(b)(2).
4
the motion for reconsideration because, among other things, Nishimoto’s “joint
motion to dismiss was her own strategic decision, a decision that could have been
delayed until after the County’s email production.” The court also noted
Nishimoto’s lack of diligence in trying to procure the evidence as she never moved
to compel the County to produce its documents.
To establish that the district court abused its discretion in denying her Rule
60(b)(2) motion, Nishimoto must show that the discovery materials “constituted
‘newly discovered evidence’ within the meaning[] of Rule[] 60(b)(2).” Coastal
Transfer Co. v. Toyota Motor Sales, 833 F.2d 208, 211 (9th Cir. 1987). “Evidence
is not ‘newly discovered’ under the Federal Rules if it . . . could have been
discovered with reasonable diligence.” Id. at 212. The record reveals that
Nishimoto could have obtained the discovery materials from the County had she
been reasonably diligent. Thus, she fails to show that the district court abused its
discretion. We also note, contrary to Nishimoto’s claim, she could not have relied
on Dr. Joshua’s testimony in filing the joint motion because his deposition
occurred after the joint motion was filed. And if Nishimoto needed more time to
obtain discovery to support her opposition to CPMG’s motion for summary
judgment, she could have sought relief under Rule 56(d) rather than agree to
dismiss the § 1983 claims against CPMG. Under the circumstances, the district
court did not abuse its discretion.
5
Finally, the district court did not abuse its discretion in denying Nishimoto’s
request to add the CPMG officials. See Coleman v. Quaker Oats Co., 232 F.3d
1271, 1294–95 (9th Cir. 2000) (reviewing for abuse of discretion where plaintiffs
sought to amend their complaints after scheduled deadline had passed). Because
the deadline for joining parties and for filing pretrial motions had passed, the
district court correctly applied the “good cause” standard under Rule 16(b)(4) to
Nishimoto’s request. See id. at 1294. Nishimoto argued that she established good
cause because, before receiving the new discovery materials, she did not know
about the feud between CPMG and the County.8 But before Nishimoto agreed to
dismiss the § 1983 claims against CPMG, CPMG’s counsel had informed
Nishimoto’s counsel that there was a separate action between CPMG and the
County related to issues in this case. Given this, the district court did not abuse its
discretion in denying Nishimoto’s request to add the CPMG officials.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
8
The district court rejected Nishimoto’s other argument establishing good
cause as moot, and Nishimoto does not appeal that part of the district court’s
decision.
6