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Smith v. Wilson

United States District Court, D. Montana, Helena Division

October 8, 2019

JACOB SMITH, Plaintiff,
v.
THOMAS WILSON, LEROY KIRKEGARD, BEAU BALTEZAR, DANEL SEGOVIA, MIKE BATISTA, TOM WOOD, MICHELE STEYH, MITCHELL CALES, JASON GRIMMIS, PAUL REES, and AMBER EDWARDS, [1] Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston, United States Magistrate Judge.

         Pending is Plaintiff Jacob Smith's Motion for Leave to Amend Complaint (Doc. 61), Motion to Exclude Defendants' Deposition of Plaintiff (Doc. 62), and Motion to Modify Scheduling Order (Doc. 68). The Motion to Amend will be granted, the motion to exclude the deposition will be denied, and the motion to modify the scheduling order will be granted in part.

         I. MOTION TO AMEND

         Rule 15(a) is very liberal and the “court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2); AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951. The burden to demonstrate prejudice falls upon the party opposing the amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing of any of the remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

         In the April 3, 2019 Amended Scheduling Order, the Court indicated it would not accept any further motions to amend without a showing of good cause. Mr. Smith has demonstrated good cause to file a second amended complaint based upon Defendants' failure to timely identify individuals with information that may be used in proving or denying any party's claims or defenses as required by the Court's March 23, 2018 Scheduling Order. (Doc. 10.)

         In his original Complaint filed December 29, 2017, Mr. Smith alleged that upon his arrival at Montana State Prison (“MSP”) from Lewis and Clark County he was transported to “Tower One” where numerous Inner Perimeter Security (“IPS”) officers arrived and restrained him. He specifically alleged that Defendant Baltezar turned his wrist toward his forearm until it was sprained and that another IPS officer nearly broke his pointer finger causing permanent damage and suffering. (Complaint, Doc. 2 at 3-4.) Mr. Smith identified John Does 1-3 as IPS officers employed at MSP who were involved in his transport to Tower One on November 3, 2016.[2] On January 11, 2018, the Court required all Defendants (including the John Doe defendants) to respond to the Complaint. Only Defendants Wilson, Baltezar, Segovia, and Steyh filed an Answer. (Doc. 9.) The Court then issued a Scheduling Order on March 23, 2018 requiring the parties to identify “the name of each individual known or believed to have information that may be used in proving or denying any party's claims or defenses and a summary of that information.” (Scheduling Order, Doc. 10 at 2.) Defendants filed a disclosure statement on May 22, 2018 identifying only Jacob Smith, Tom Wilson, Beau Baltezar, Daniel Segovia, Michelle Steyh, Billie Reich, and Kristy Cobban as individuals with information. (Disclosure Statement, Doc. 17 at 16.)

         Mr. Smith filed a motion for leave to file an amended complaint which was granted on April 3, 2019 and an Amended Scheduling Order was issued. (Doc. 33-35.) On July 24, 2019, Defendants Wilson, Baltezar, Segovia, Steyh, Batista, Rees, Edwards, Kirkegard, and Wood filed a supplemental disclosure statement and identified the following additional individuals as persons that may have knowledge that may be used in proving or denying a party's claim or defense: LeRoy Kirkegard, Mike Batista, Tom Wood, Medical Staff, Amber Edwards, Paul Rees, Paul Harmon, Mitchell Cales, Daniel Fosness, Same Casey, and other IPS team members. (Doc. 59 at 3-4.)

         Although Defendants oppose Mr. Smith's motion to now amend his complaint to provide names of the John Does named in his original complaint, they provide no explanation as to why the IPS officers involved in the transport of Mr. Smith on November 4, 2016 were not identified in their original disclosure statement. Defendants are estopped from objecting to Mr. Smith's amendment on the grounds that he did not attempt to determine the identities of the John Doe defendants through formal discovery. They should have timely identified Officers Harmon, Cales, and Fosness as individuals with knowledge of the November 4, 2016 transport of Mr. Smith in their May 22, 2018 disclosure. Accordingly, the August 19, 2019 motion to amend the complaint will be granted and the Clerk of Court will be directed to file the second amended complaint.

         II. SCREENING OF SECOND AMENDED COMPLAINT PURSUANT TO 28 U.S.C. §§ 1915, 1915A

         A. Standard

         Mr. Smith is a prisoner proceeding in forma pauperis so the Court must review his Amended Complaint under 28 U.S.C. §§ 1915, 1915A. Sections 1915A(b) and 1915(e)(2)(B) require the Court to dismiss a complaint filed in forma pauperis and/or by a prisoner against a governmental defendant before it is served if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A case is malicious if it was filed with the intention or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted).

         An amended complaint replaces the original complaints, and as such the original complaints no longer serves a function in the case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). As such, the Second Amended Complaint (Doc. 72-2) will be the only operative pleading in this case.

         B. Allegations in Second Amended Complaint

         Mr. Smith alleges he was confined at the Lewis and Clark Detention Center (LCDC) from October 2015 until November 4, 2016. During this time, he engaged in filing numerous grievances, complaints, and lawsuits many of which were lodged against Defendant Grimmis and his friends and colleagues, and Department of Corrections (“DOC”) employees and contractors. He claims Defendant Grimmis communicated false information to DOC employees with the intention to override Mr. Smith to prison on November 4, 2016.

         Mr. Smith was transported to MSP and delivered to IPS officers at Tower One. He claims Defendant Baltezar assaulted him by twisting his right wrist which was sprained and that Officer Mitchell Cales dislocated his left index finger in a back and forth motion. Mr. Smith was escorted to Locked Housing Unit 1 where Baltezar told him that if he started filing grievances he would never get out. He claims Defendants Wilson, Kirkegard, Wood, Segovia and Batista were aware of a number of incidents of assault, misuse of force, or mistreatement of prisoners and acquiesced, failed to train, supervise, discipline, investigate, and control their officers.

         C. Analysis

         The Court has considered whether Mr. Smith's claims against Defendants Grimmis, Baltezar, Wilson, Kirkegard, Wood, Segovia, Batista, Rees, and Edwards are frivolous, malicious, fails to state a claim, or seeks solely monetary relief from a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2), 1915A(b). Dismissal is not appropriate at this time. Mr. Smith's allegations against these Defendants as alleged in the Second Amended Complaint “are sufficient to meet the low threshold for proceeding past the screening stage, ” and are not subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) or (2). Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). These Defendants must respond to the Second Amended Complaint.

         Similarly, the Court finds that Mr. Smith's allegations against Defendant Cales as alleged in the Second Amended Complaint “are sufficient to meet the low threshold for proceeding past the screening stage, ” and are not subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) or (2). Wilhelm v. Rotman, 680 ...


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