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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Richard LeGrand Gause,

Plaintiff,

v. 

Unknown Indy, et al.,

Defendants.

No. CV-15-02514-JJT-ESW

ORDER

Pending before the Court are a number of motions, which the Court has reviewed 

and rules on as set forth below. 

I. DISCUSSION

A. Plaintiff’s “Motion Requesting Leave to make 2nd Amendment to 

complaint” (Doc. 88) and Defendants Ende and Rojas’ “Motion for Leave 

to File Sur-Reply to Plaintiff’s Second Motion to Amend (Doc. 88)” (Doc. 

118) 

On May 16, 2016, pursuant to Federal Rule of Civil Procedure 16(b) and Local 

Rule of Civil Procedure (“LRCiv”) 16.2(b)(2), the Court issued a Scheduling Order (Doc. 

19). The Court set July 15, 2016 as the deadline for filing a motion to amend the First 

Amended Complaint (Doc. 8). (Doc. 19 at 4). A Rule 16 scheduling order may be 

“modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 

Once a district court has filed a Rule 16 scheduling order setting a deadline for amending 

pleadings, a motion seeking to amend pleadings is governed first by Rule 16(b) and only 

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secondarily by Rule 15(a).

1 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-

09 (9th Cir. 1992) (“A court’s evaluation of good cause is not coextensive with an inquiry 

into the propriety of the amendment under . . . Rule 15.”); Coleman v. Quaker Oats Co.,

232 F.3d 1271, 1294 (9th Cir. 2000). The standards of review under Rules 15 and 16 are 

markedly different. “Unlike Rule 15(a)’s liberal amendment policy which focuses on the 

bad faith of the party seeking to interpose an amendment and the prejudice to the 

opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of 

the party seeking the amendment.” Johnson, 975 F.2d. at 609. Although prejudice to the 

opposing party can be an additional reason to deny a motion to amend under Rule 16, the 

focus of the inquiry is on the movant’s reasons for seeking modification. Id. If the 

movant “was not diligent, the inquiry should end.” Id.

In addition, Ninth Circuit case law supports a district court’s denial of a motion 

filed after the applicable scheduling order deadline on the ground that the movant did not 

request to modify the deadline. Johnson, 975 F.2d at 608 (“Johnson did not specifically 

request that the court modify its scheduling order; he merely moved to amend his 

complaint. He points out that some courts have considered a motion to amend the 

complaint as a motion to amend the scheduling order and the court’s denial of that 

motion a denial of a motion to amend the scheduling order. . . . We have suggested the 

contrary.”); U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104

(9th Cir. 1985) (holding that a district court properly denied a motion as untimely where 

it was filed after the applicable scheduling order deadline and the movant “never 

requested a modification” of the scheduling order), superseded by statute on other 

grounds as recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996); 

Dedge v. Kendrick, 849 F.2d 1398, 1398 (11th Cir. 1988) (holding that a district court 

1 Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that, except in circumstances not present in this case, “a party may amend its pleading only with the 

opposing party's written consent or the court’s leave,” which “[t]he court should freely give . . . when justice so requires.”

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properly denied a motion as untimely where the motion was filed after the deadline set 

forth in the scheduling order and the movant did not request a modification of the 

scheduling order). 

Almost a month after the applicable deadline, Plaintiff filed a “Motion Requesting 

leave to make 2nd Amendment to complaint” (Doc. 88). The Motion may be denied 

solely on the basis that it is untimely. Johnson, 975 F.2d at 608; U.S. Dominator, 

Inc., 768 F.2d at 1104; Dedge, 849 F.2d at 1398. Denial of the Motion is warranted even 

if it is deemed as a de facto motion to modify the Scheduling Order. Because the Motion 

was filed after the deadline, Plaintiff cannot “appeal to the liberal amendment procedures 

afforded by Rule 15; his tardy motion [has] to satisfy the more stringent ‘good cause’ 

showing required under Rule 16.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 

F.3d 946, 952 (9th Cir. 2006) (emphasis in original). Plaintiff has failed to show the 

diligence and good cause necessary for the Court to deviate from its Rule 16 Scheduling 

Order.

Further, LRCiv 15.1 requires a party moving to amend a complaint to file a copy 

of the amended pleading indicating “in what respect it differs from the pleading

which it amends, by bracketing or striking through the text to be deleted and

underlining the text to be added.” The District Court of Arizona routinely denies parties 

the opportunity to amend a complaint for failure to comply with LRCiv 15.1. See, e.g., 

Bivins v. Ryan, No. CV–12–1097–PHX–ROS (LOA), 2013 WL 321847, at *4 (D. Ariz. 

Jan. 28, 2013); Huminski v. Heretia, No. CV11-0896-PHX-DGC, 2011 WL 2910536, at 

*1 (D. Ariz. July 18, 2011); Miles v. King, No. CV-13-370-PHX-SRB (LOA), 2013 WL 

5526997 (D. Ariz. Oct. 7, 2013). 

In their Response (Doc. 104), Defendants Ende and Rojas note that Plaintiff’s 

Motion (Doc. 88) fails to comply with LRCiv 15.1. Attached to Plaintiff’s Reply (Doc. 

107)2 is a proposed Second Amended Complaint. Defendants Ende and Rojas move for 

2 The Reply is captioned “Response to Defendant Ende and Rojas’ response to my 

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leave to file a sur-reply. To the extent that a party raises a new argument or proffers

new evidence and information in a reply brief, that argument or evidence is

improper because the opposing party is deprived of an opportunity to respond. See

Tovar v. United States Postal Service, 3 F.3d 1271, 1273 n.3 (9th Cir. 1993). A court

cannot consider new evidence provided in a reply when the other party does not have an

opportunity to respond to the evidence. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th

Cir. 1996). Granting leave to file a sur-reply therefore is generally appropriate when a 

party raises new issues or new evidence in a reply brief. Because Plaintiff’s Reply 

attached a copy of the proposed Second Amended Complaint, which had not previously 

been submitted, the Court will grant Defendants Ende and Rojas’ Motion (Doc. 118). 

The Court has considered the sur-reply attached to the Motion. (Doc. 118-1 at 2-9). 

As the proposed Second Amended Complaint attached to Plaintiff’s Reply does 

not indicate how it differs from the First Amended Complaint, Plaintiff has failed to 

comply with LRCiv 15.1. Plaintiff’s failure to comply with LRCiv 15.1(a) hinders the

Court’s ability to compare the First Amended Complaint to the proposed Second 

Amended Complaint. Plaintiff’s untimely Motion (Doc. 88) will be denied.

B. Plaintiff’s “Motion Requesting to be appointed counsel” (Doc. 106)

On June 7, 2016, the Court denied Plaintiff’s request for court-appointed counsel 

after finding that Plaintiff has not shown that exceptional circumstances are present that 

would require the appointment of counsel. (Doc. 25 at 1-2). In his September 7, 2016 

Motion (Doc. 106), Petitioner again requests court-appointed counsel. However, 

Petitioner still has not shown the presence of exceptional circumstances warranting the 

appointment of counsel. Plaintiff’s Motion (Doc. 106) will be denied. 

C. Plaintiff’s “Addittional [sic] Discovery Disclosure” (Doc. 108)

Attached to Plaintiff’s September 9, 2016 “Addittional [sic] Discovery 

Disclosure” (Doc. 108) are information sheets on certain medications. Federal Rule of 

2nd Amended Complaint Request.”

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Civil Procedure 5(d) prohibits the filing of disclosures until they are used in the 

proceeding or the Court orders filing. However, LRCiv 5.2 requires the filing of a 

“Notice of Service” of disclosures. Because Petitioner has not yet “used” the medication 

information sheets in this proceeding, the filing of the “Addittional [sic] Discovery 

Disclosure” (Doc. 108) instead of a “Notice of Service” violates the Federal and Local 

Rules of Civil Procedure. The filing (Doc. 108) will be stricken. The Court deems 

September 9, 2016 the date the disclosure was served. 

D. Plaintiff’s “Notice of Service of Complaint filed on Defendant Ende with 

Arizona Board of Nursing . . . .” (Doc. 111)

In his September 13, 2016 Notice (Doc. 111), Plaintiff attached a copy of a 

complaint filed against Defendant Ende with the Arizona Board of Nursing. The Court 

advised the parties in its September 1, 2016 Order (Doc. 105) that in the interest of 

controlling the Court’s docket, it will not allow the parties to file notices that are not

required to be filed pursuant to the Federal and Local Rules of Civil Procedure (e.g. a 

“Notice of Service” filed pursuant to LRCiv 5.2 of the disclosures and discovery requests 

and responses listed in Fed. R. Civ. P. 5(d)). Plaintiff’s Notice (Doc. 111) will be 

stricken.

E. Plaintiff’s “Motion Requesting Courts Rule in my favor due to Defendants 

Refusing to comply with repeated Court Orders” (Doc. 115)

On September 1, 2016, the Court ordered counsel for Defendant Utterbeck to file 

under seal the last known address for Defendant Dentist Doe, identified by Plaintiff as 

Laura Hale. (Doc. 105 at 8). The Court further ordered that upon receipt of the address, 

the Clerk of Court shall complete and forward to the United States Marshals Service 

(“USMS”) a service packet for Defendant Hale. (Id. at 9). Finally, the Court extended 

the time to effectuate service on Defendant Hale by sixty days. (Id.). 

Counsel for Defendant Utterbeck filed under seal Defendant Hale’s last known 

address on September 14, 2016. (Doc. 112). The docket reflects that the Clerk of Court 

forwarded to the USMS a service packet for Defendant Hale on September 16, 2016. 

On September 15, 2016, Plaintiff filed a Motion (Doc. 115) contending that “The 

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Courts have now Ordered Defendants [sic] Utterbecks [sic] counsel (Doc. 35 and Doc. 

105) multiple times to produce under seal last known address Defendant Dentist Doe 

Laura Hale, the address from her employment records.” Contrary to the preceding 

sentence, Doc. 35 is not an Order, but Plaintiff’s “Motion to have Defendants provide 

Marshall [with] Home Address of Defendant Dentist Doe.” The Court granted the

Motion in its September 1, 2016 Order (Doc. 105). Counsel for Defendant Utterbeck

timely complied with the Order on September 14, 2016. (Doc. 112). To the extent 

Plaintiff seeks to compel compliance with the Court’s September 1, 2016 Order, his

Motion (Doc. 115) is denied as moot. 

Plaintiff’s Motion (Doc. 115) also requests the Court “to rule Summary Judgement 

in [Plaintiff’s] favor for Defendants Council [sic] refusing to respond to multiple Court 

Orders.” It is unclear whether Plaintiff intended to file a motion for summary judgment 

pursuant to Federal Rule of Civil Procedure 56. Plaintiff’s Motion (Doc. 115) is not 

captioned as a motion for summary judgment and it does not comply with the applicable 

procedure requirements for such a motion. If Plaintiff intended to file a motion for 

summary judgment pursuant to Federal Rule of Civil Procedure 56, Plaintiff must timely 

re-file his Motion in compliance with the procedural requirements set forth in Federal 

Rule of Civil Procedure 56 and LRCiv 56.1.3

F. Plaintiff’s “Response to Defendants Ende and Rojas’ Fourth Request for 

Productions” (Doc. 120) 

In his September 20, 2016 filing, Plaintiff alleges that Defendants Ende and Roajs 

are refusing to produce all of Plaintiff’s medical records, medical reports, and “Medical 

E-Mails that have [Plaintiff’s] name attached to the file from 7-2014 to present.” (Doc. 

120 at 2). Plaintiff asserts that “Defendants just ignore my correspondence when I write 

3 For instance, LRCiv 56.1(a) requires any party filing a motion for summary judgment to submit a separate statement of facts that sets forth “each material fact on 

which the parties relies in support of the motion.” A failure to submit a separate 

statement of facts in the form required by the rules “may constitute ground for denial of 

the motion.” LRCiv 56.1(a).

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to try and resolve this without the Courts being involved. After 7 letters they finally 

respond to tell me they don’t have to respond to any correspondence not through the 

Courts.” (Id. at 3). 

On September 1, 2016, the Court struck a number of Plaintiff’s discovery motions 

for failure to comply with the discovery dispute resolution procedure set forth in the 

Court’s Scheduling Order (Doc. 19). (Doc. 105 at 1-2). The Court’s Scheduling Order 

advises the parties in bold letters that the Court will not consider a motion regarding 

discovery matters unless the parties have participated in a discovery conference. (Doc. 

19 at 3). By filing the “Response to Defendants Ende and Rojas’ Fourth Request for 

Production” (Doc. 120) instead of a request for a discovery conference, Plaintiff has 

failed to comply with the Scheduling Order. 

“A scheduling order is not a frivolous piece of paper, idly entered, which can be 

cavalierly disregarded . . . .” Johnson, 975 F.2d at 610. However, the Court observes 

that the October 14, 2016 discovery and November 15, 2016 dispositive motion deadlines 

are fast approaching. In addition, the Court is mindful that “summary judgment is

disfavored where relevant evidence remains to be discovered, particularly in cases

involving confined pro se plaintiffs.” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir.

2004) (citing Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988)). As this case 

involves an Eighth Amendment claim of deliberate indifference to serious medical needs, 

Plaintiff’s ability to defeat summary judgment may be prejudiced by not having his

complete medical file. See Calloway v. Veal, 571 F. App’x 626, 628 (9th Cir. 2014)

(“The district court erred by entering judgment against Calloway—who appeared

below in pro per and in forma pauperis while incarcerated—without providing him

an appropriate opportunity to conduct discovery” and noting that the plaintiff 

requested, but did not receive his complete medical records).

The Court will require Defendants Ende and Rojas to respond to Plaintiff’s 

September 20, 2016 filing (Doc. 120) by advising the Court of the status of Plaintiff’s 

request for “all Medical Records and all Medical Reports, Medical E-Mails that may have 

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[Plaintiff’s] name attached to the file from 7-2014 to present.” (Id. at 2).

II. CONCLUSION

Based on the foregoing,

IT IS ORDERED denying Plaintiff’s “Motion Requesting Leave to make 2nd 

Amendment to complaint” (Doc. 88).

IT IS FURTHER ORDERED granting Defendants Ende and Rojas’ “Motion for 

Leave to File Sur-Reply to Plaintiff’s Second Motion to Amend (Doc. 88)” (Doc. 118). 

The sur-reply lodged (Doc. 118-1 at 2-9) is deemed filed and has been considered.

IT IS FURTHER ORDERED denying Plaintiff’s “Motion Requesting to be 

appointed counsel” (Doc. 106).

IT IS FURTHER ORDERED directing the Clerk of Court to strike Plaintiff’s 

“Addittional [sic] Discovery Disclosure” (Doc. 108).

IT IS FURTHER ORDERED directing the Clerk of Court to strike Plaintiff’s 

“Notice of Service of Complaint filed on Defendant Ende with Arizona Board of Nursing 

. . . .” (Doc. 111).

IT IS FURTHER ORDERED denying Plaintiff’s “Motion Requesting Courts 

Rule in my favor due to Defendants Refusing to comply with repeated Court Orders” 

(Doc. 115). If Plaintiff intended to file a motion for summary judgment pursuant to 

Federal Rule of Civil Procedure 56, Plaintiff must timely re-file his Motion in compliance

with the procedural requirements set forth in Federal Rule of Civil Procedure 56 and 

LRCiv 56.1. The Clerk of Court is directed to amend the docket to remove the indication 

that Plaintiff’s Motion (Doc. 115) is a motion for summary judgment.

IT IS FURTHER ORDERED that by October 7, 2016, Defendants Ende and 

Rojas shall respond to Plaintiff’s September 20, 2016 filing (Doc. 120) by advising the 

Court of the status of Plaintiff’s request for “all Medical Records and all Medical 

Reports, Medical E-Mails that may have [Plaintiff’s] name attached to the file from 7-

2014 to present.” (Id. at 2). Plaintiff may file a reply to Defendants Ende and Rojas’ 

response within seven days from the date of service.

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IT IS FURTHER ORDERED that in light of the discovery issue pertaining to 

Plaintiff’s medical records, the dispositive motion deadline set forth in the Court’s 

Scheduling Order is stayed pending further order of the Court. Defendants shall not file a 

motion for summary judgment until the Court sets the new deadline. All other deadlines, 

including the October 14, 2016 discovery deadline, are affirmed. 

Dated this 28th day of September, 2016. 

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