Hernandez v. Lord et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
HECTOR HUGO HERNANDEZ,
Plaintiff,
vs.
DARLENE LORD, et al.,
Defendants.
Case No. 3:19-cv-00151-RRB
ORDER RE: PENDING MOTIONS
Before 	the 	Court 	are 	six 	pending 	motions 	governing 	the 	scheduling,
discovery, and disposition of this case.
I. 	Motion to Amend Complaint (Docket 101)
The Second Amended Scheduling Order set a May 5, 2021, deadline for
amended pleadings, and “[t]hereafter a party must file a motion with the Court
seeking to extend this deadline, and explain why there is good cause to do so.”1
Mr. Hernandez filed his Motion to Amend Complaint on July 7, 2021. In his motion,
he asserts that during the course of discovery, he identified Segregation Officer
Price as the alleged individual responsible for the upper tier and top bunk housing
assignment while Plaintiff had an untreated broken leg/ankle.2 Further, he asserts
that Segregation Officer Price ignored his injury and pleas for help.3
1 Docket 92.
2 Docket 101 at 1; Docket 101-1 at 21.
3 Docket 101-1 at 21.
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In response, Defendants argue that Mr. Hernandez’s claim falls outside of
the statute of limitations.4 	Further, Defendants argue that the additional alleged
claim 	does 	not 	relate 	back 	under 	either 	Federal 	or 	Alaska 	Rule 	of 	Civil
Procedure 15.5
Mr. Hernandez replied that the Federal Rules of Civil Procedure permit
amendment 	if 	the 	claim 	or 	defense 	arose 	out 	of 	the 	same 	transaction 	or
occurrence.6
The amendment of a complaint after the issuance of a scheduling order is
governed by Federal Rule of Civil Procedure 16(b), not Rule 15.7 	Once issued,
the scheduling order “controls the course of the action unless the court modifies
it.”8 “The district court is given broad discretion in supervising the pretrial phase of
litigation, and its decisions regarding the preclusive effect of a pretrial order . . . will
not be disturbed unless they evidence a clear abuse of discretion.”9
Here, Mr. Hernandez should have moved to Amend the Scheduling Order,
rather than the Complaint. 	But the Ninth Circuit has acknowledged that courts
4 Docket 102 at 5–7.
5 Docket 102 at 7–9.
6 Docket 104 at 1, citing Fed. R. Civ. P. 15(c)(1).
7 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–11 (9th Cir. 1992); see
also Morgal v. Maricopa Cty. Bd. of Sup’rs, 284 F.R.D. 452, 459 (D. Ariz. 2012) (“In the
Ninth Circuit, where, as here, a motion for leave to amend is filed after entry of a Rule 16
scheduling order, the movant cannot ‘appeal to the liberal amendment procedures
afforded by Rule 15[.]’ Instead, the movant must ‘satisfy the more stringent “good cause”
showing required under Rule 16.’” (quoting AmerisourceBergen Corp. v. Dialysist West,
Inc., 465 F.3d 946, 952 (9th Cir. 2006)).
8 Fed. R. Civ. P. 16(d).
9 Johnson, 975 F.2d at 607; see also Morgal, 284 F.R.D. at 459.
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across the country have considered a motion to amend the complaint as a motion
to amend the scheduling order.10 Moreover, a court may act with leniency towards
a self-represented litigant for procedural violations.11 Accordingly, in the interests
of 	justice 	and 	judicial 	economy, 	the 	Court 	construes 	the 	Motion 	to 	Amend
Complaint as a Motion to Amend the Scheduling Order.
A court evaluates a motion to amend a scheduling order for good cause.12
“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party
seeking the amendment” and weighs “the existence or degree of prejudice” to the
opposing party.13 	Courts within the Ninth Circuit use a three-part inquiry in
determining whether a movant has been diligent in seeking amendment.14 	A
movant must demonstrate: (1) thoughtfulness in assisting the Court in a workable
scheduling order; (2) that noncompliance with the Rule 16 deadline occurred
because 	of 	reasonably 	unforeseen 	or 	unanticipated 	circumstances; 	and
(3) persistence in seeking amendment once noncompliance became apparent.15
As a preliminary matter, Mr. Hernandez is exempt from pretrial scheduling
conferences, because he is a self-represented prisoner.16 Thus, the first element
10 Johnson, 975 F.2d at 608–09 (also acknowledging that the Circuit has upheld
district court decisions with strict interpretations of Rule 16).
11 Motoyama v. Hawaii, Dept. of Transp., 864 F. Supp. 2d 965, 976 (2012) (further
noting that leniency does not excuse self-represented litigants from the rules that govern
proceedings).
12 Fed. R. Civ. P 16(b); see also Docket 92 at 2.
13 Johnson, 975 F.2d at 609.
14 Morgal, 284 F.R.D. at 460.
15 Morgal, 284 F.R.D. at 460.
16 Local Civil Rule 16.1(a).
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of the diligence inquiry is moot. 	As to the other two elements, Mr. Hernandez
asserts that he discovered the identity and role of Segregation Officer Price from
“official records only recently obtained by the plaintiff through discovery” and that
he 	sought 	consent 	from 	counsel 	prior 	to 	filing 	his 	motion.17 	Since 	the
commencement of this suit, Mr. Hernandez continually has raised that his housing
assignment in segregation was a key fact in his claims of deliberate indifference.18
He alleges Segregation Officer Price assigned him to an upper tier and upper bunk
housing 	placement 	and 	ignored 	his 	pleas 	and 	injury. 	The 	Court 	received
Mr. Hernandez’s motion and amended complaint on July 7, 2021—one day after
the close of discovery. Further, the Court notes that Mr. Hernandez’s certificate of
service to Defendants is dated June 30, 2021—before the close of discovery. The
Court finds Mr. Hernandez diligent in his actions. The Court finds only negligeable
prejudice to Segregation Officer Price being added at this stage of litigation. 	No
dispositive decisions have been made in this action, and discovery will resume.
Therefore, Mr. Hernandez has demonstrated good cause to amend the scheduling
order.
17 Docket 101 at 1.
18 See Dockets 1, 62.
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Accordingly, the Court GRANTS the Motion to Amend Scheduling Order and
accepts Mr. Hernandez’s Second Amended Complaint at Docket 101-1. 	A Third
Amended Scheduling Order shall issue.19
II. 	Motion to Compel Discovery (Docket 103)
Mr. 	Hernandez 	requests 	the 	Court 	compel 	discovery 	of 	three
items/categories of evidence: 	(1) x-rays/pictures of his ankle; (2) video footage
from the Punitive Segregation Unit from April 10, 2021–April 25, 2019; and
(3) incident and misconduct reports of the various Defendants.20
Defendants oppose on procedural and substantive grounds.21 Procedurally,
Defendants argue Mr. Hernandez’s motion is untimely. Substantively, Defendants
assert first that the x-rays have been produced and therefore the issue is moot.22
Second, 	the 	request 	for 	video 	is 	futile, 	because 	the 	video 	was 	deleted.23
Defendants state “that data storage capacity required to indefinitely maintain
round-the-clock 	surveillance 	video 	would 	be 	astronomical 	and 	prohibitively
expensive.”24 Defendants further state the video is stored “for a few months before
deleting it unless the surveillance video shows a security or medical indecent worth
preserving, e.g. an altercation between inmates or an inmate suffering an injury.
19 The Statute of Limitations is an affirmative defense. The Court declines to address
that argument under this Rule 16 inquiry; however, Defendant Price may elect to re-raise
at the appropriate time.
20 Docket 103.
21 Docket 105.
22 Docket 105 at 3–4.
23 Docket 105 at 3.
24 Docket 105 at 3.
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. . . video of plaintiff in punitive segregation without a security or medical incident
was not the kind of surveillance Good Creek preserves beyond the initial few
month period.”25 Third, Defendants state they have responded to Mr. Hernandez’s
May 24, 2021, discovery request, making this issue moot.26
Mr. Hernandez replies that his motion is timely under the prisoner mailbox
rule.27 Further he asserts: (1) disclosed x-ray images are incomplete and missing
the right-side angle, which should show the fracture;28 (2) the video should not
have 	been 	deleted 	and 	opens 	the 	door 	for 	spoilation;29 	and 	(3) 	he 	seeks
disciplinary records “not to prove the character of the defendants, but to prove
motive, opportunity, intent, preparation, plan, knowledge, identify or absence of
mistake or accident” and requests in camera review.30
Rule 26 of the Federal Rules of Civil Procedure permits a party to obtain
discovery “regarding any nonprivileged matter that is relevant to any party's claim
or defense and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit. 	Information within this scope of
25 Docket 105 at 3.
26 Docket 105 at 4.
27 Docket 108 at 3.
28 Docket 108 at 2.
29 Docket 108 at 3–4.
30 Docket 108 at 2.
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discovery need not be admissible in evidence to be discoverable.”31 “Evidence is
relevant if: it has any tendency to make a fact more or less probable than it would
be without the evidence; and the fact is of consequence in determining the
action.”32
Rule 37 of the Federal Rules of Civil Procedure provides that a party may
move for an order compelling disclosure or discovery.33 “A party seeking discovery
may 	move 	for 	an 	order 	compelling 	an 	answer, 	designation, 	production, 	or
inspection” where “(i) a deponent fails to answer a question asked under Rule 30
or 	31; 	(ii) 	a 	corporation 	or 	other 	entity 	fails 	to 	make 	a 	designation 	under
Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted
under Rule 33; or (iv) a party fails to produce documents or fails to respond that
inspection will be permitted -- or fails to permit inspection -- as requested under
Rule 34.”34 	The party opposing the discovery bears the burden of resisting
disclosure.35 	Granting 	or 	denying 	a 	motion 	to 	compel 	has 	significant
consequences including: 	sanctions, the payment of expenses, and protective
orders.36
31 Fed. R. Civ. P. 26(b)(1).
32 Fed. R. Evid. 401.
33 Fed. R. Civ. P. 37(a)(1).
34 Fed. R. Civ. P. 37(a)(3)(B).
35 Bryant v. Armstrong, 285 F.R.D. 596, 600 (S.D. Cal. 2012); London Wallace v. City
of Fresno, No. 119CV01199AWISAB, 2021 WL 916244, at *2 (E.D. Cal. Mar. 10, 2021).
36 Fed. R. Civ. P. 37(a)(5).
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As articulated above, the Court has granted Mr. Hernandez’s motion to
amend the scheduling order. 	Accordingly, discovery shall re-open, making this
motion to compel moot. The Court anticipates the parties will be able to be resolve
these issues in the additional time given. 	However, in the interest of judicial
economy and the efficiency of this litigation, the Court provides the following
guidance regarding three issues raised in the motion.
a. 	X-Ray
With the re-opening of discovery, it is anticipated that this dispute shall be
able 	to 	resolve 	between 	the 	parties 	with 	either 	disclosure 	of 	the 	right-side
perspective of the x-ray or confirmation that the image does not exist.
b. 	Video
A court cannot compel evidence that does not exist. However, this does not
leave litigants without recourse in the event evidence is lost. A party must preserve
evidence it knows or should know is relevant to a claim or defense of any party, or
that may lead to the discovery of relevant evidence.37 The duty to preserve applies
to any active civil action and extends to the period before litigation when a party
should reasonably know that evidence may be relevant to anticipated litigation.38
As soon as a potential claim is identified, a litigant is under a duty to preserve
evidence which it knows or reasonably should know is relevant to the action, is
37 Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051
(S.D. Cal. 2015); see also United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001
(9th Cir. 2002).
38 Compass Bank, 104 F. Supp. at 1051 (internal citations omitted).
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reasonably 	calculated 	to 	lead 	to 	the 	discovery 	of 	admissible 	evidence, 	is
reasonably likely to be requested during discovery, or is the subject of a pending
discovery request.39
Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.40 If order for a litigant to successfully allege spoliation, three
elements must be proven: “(1) the party having control over the evidence had an
obligation to preserve it when it was destroyed or altered; (2) the destruction or
loss was accompanied by a culpable state of mind; and (3) the evidence that was
destroyed or altered was relevant to the claims or defenses of the party that sought
the discovery of the spoliated evidence.”41 	If a party is determined to have
spoliated 	evidence, 	a 	court 	must 	determine 	if 	and 	what 	sanctions 	are
appropriate.42
c. 	Incident and Misconduct Reports
To the extent that Mr. Hernandez is seeking disciplinary information in
Defendants’ personnel files, Alaska Statute § 39.25.080 classifies state employee
39 Compass Bank, 104 F. Supp. at 1051; relying on In re Napster, Inc. Copyright Litig.,
462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006).
40 Kitsap Physicians Serv., 314 F.3d at 1001; (citing Akiona v. United States, 938 F.2d
158, 161 (9th Cir. 1991) (a party engages in spoliation only if they had some notice that
the documents were potentially relevant to the litigation before they were destroyed).
41 Balla v. Idaho State Bd. of Correction, 119 F. Supp. 3d 1271, 1282 (D. Idaho 2015);
quoting Montoya v. Orange Cty. Sheriff's Dep't, Case No. 11–cv–1922, 2013 U.S. Dist.
LEXIS 180682, at *19–20 (C.D. Cal. Oct. 15, 2013).
42 Balla, 119 F. Supp. at 1282.
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personnel records as confidential and not open to public inspection.43 Government
personnel files are considered official information and may be subject to qualified
privilege.44 	Requests for in camera review are not taken lightly. 	Relevance and
probative value would need to be demonstrated in a formally and properly made
motion before the Court could grant such relief.
IT IS THEREFORE ORDERED:
1. 	Plaintiff’s Motion to Amend Complaint at Docket 101, construed as a
Motion to Amend the Scheduling Order, is GRANTED. 	The Second
Amended 	Complaint 	at 	Docket 	101-1 	is 	accepted 	and 	shall 	be
docketed. A Third Amended Scheduling Order shall issue separately.
2. 	Plaintiff’s Motion to Compel at Docket 103 is DENIED WITHOUT
PREJUDICE due to the re-opening of discovery.
3. 	Plaintiff’s Supplemental Motion to Compel at Docket 106 is DENIED
WITHOUT PREJUDICE due to the re-opening of discovery.
4. 	Plaintiff’s Motion for an Extension of Time to File Dispositive Motions at
Docket 109 is DENIED AS MOOT, in light of the forthcoming Third
Amended Scheduling Order.
5. 	Defendants may elect to amend or withdraw their Motion for Summary
Judgment at Docket 110.
43 Alaska Stat. § 39.25.080.
44 Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990), as amended
on denial of reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991).
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6. Defendants’ Motion to File Excess Pages at Docket 121 is GRANTED.
7. Plaintiffs’ Motion for an Extension of Time to Respond to Summary
Judgment at Docket 123 is DENIED AS MOOT, in light of the
forthcoming Third Amended Scheduling Order.
IT IS SO ORDERED this 29th day of October, 2021, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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