Hicks v. Cottonwood, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Wes Colby Hicks,
Plaintiff,
v.
City of Cottonwood, et al.,
Defendants.
No. CV-25-08025-PCT-SMB (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is Plaintiff’s “Motion for Leave to File First Amended
Complaint” (“Motion” and “Motion for Leave to Amend”) (doc. 21).1 Plaintiff seeks leave
to amend “to correct and cure substantial errors, omissions, and mischaracterizations made
by prior counsel that materially impaired [his] ability to present [his] claims fully and
accurately.”2 (Doc. 21 at 1.) Plaintiff additionally seeks to add an additional Plaintiff,
additional Defendants, and additional claims. See generally (id.) Plaintiff lodged his
1 This Report and Recommendation is filed pursuant to the District Court’s March 5,
2025, Order. (Doc. 4.)
2 This action is predicated on an apparent “malicious[] prosecut[ion]” of Plaintiff for
driving under the influence of alcohol due to an alleged tampering of his blood sample.
(Doc. 1 at 1–3.) Plaintiff alleges that his blood sample was tampered with because his
“blood sample showed a BAL of 900ng/ml which was a level of impairment associated
with coma or death.” (Id. at 3.). Plaintiff’s assertion appears to be incorrect based off of the
parties’ “Joint Case Management Report,” where it was then alleged Plaintiff’s blood
methamphetamine level was 900mg/mL, not blood alcohol. See (Doc. 10 at 5) (emphasis
added). Although such anomalies are present in Plaintiff’s action, it is not within this
Court’s jurisdiction to question the evidence at this time.
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Proposed First Amended Complaint (“PFAC”). (Doc. 22.) Defendants have filed a
Response objecting to Plaintiff’s Motion for Leave to Amend.3 (Doc. 23.)
Because Plaintiff’s Motion fails to comply with either the Federal or Local Rules of
Civil Procedure, the Court recommends the Motion be denied.
I. Background.
On February 4, 2025, Plaintiff filed a civil rights Complaint pursuant to 42 U.S.C.
§ 1983. (Doc. 1.) At the time, Plaintiff was represented by counsel. (Id.) His Original
Complaint asserted the following three counts: (1) “Violation of 42 U.S.C. 1983 Malicious
Prosecution in Violation of the Fourth Amendment”; (2) abuse of process; and (3) state
law malicious prosecution. (Id. at 6.) On April 24, 2025, Defendants answered Plaintiff’s
Complaint. (doc. 7.)
On Jue 9, 2025, the Court conducted a Case Management Conference with the
parties. (doc. 12.) On June 10, 2025, the Court issued a Case Management Order. (Doc.
13.) The deadline to join parties and amend pleadings was set for August 8, 2025. (Id. at
1.)
On July 17, 2025, Plaintiff’s counsel filed a motion to withdraw. (Doc. 16.) On
August 8, 2025, Plaintiff’s counsel filed a motion for an extension of time to amend the
Complaint. (Doc. 17.) On August 14, 2025, the Court granted both motions, extending the
deadline to amend pleadings to September 5, 2025. (Doc. 18 at 1–2) (emphasis added).
Plaintiff did not file the instant Motion until January 9, 2026. (Doc. 21.) Hence, Plaintiff’s
Motion was filed 126 days late.
Plaintiff’s PFAC seeks to add additional parties and claims. See generally (doc. 22.)
Beginning with the later, Plaintiff seeks to add a Fourteenth Amendment Due Process
claim, a “state-created danger claim,” a retaliation claim, and a claim for Monell liability.
(Id. at 3.) Plaintiff does not provide any arguments with these claims—or any claims in
fact. (Id.) Instead, he solely lists his claims without any factual or legal support or analysis
whatsoever. (Id.) Turning to the prior point, Plaintiff seeks to add his spouse as an
3 The Court has read, but does not summarize, Defendants’ Response.
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additional Plaintiff and add additional police officers as Defendants. (Id. at 1.)
II. Legal Standards.
The Federal Rules of Civil Procedure permits a party to amend its complaint before
trial. Fed. R. Civ. P. 15(a). For timely motions for leave to amend, the Court applies Rule
15, which states that “[t]he [C]ourt should freely give leave [to amend] when justice so
requires.” Id. at 15(a)(2). However, Rule 15 does not govern this Motion. Rather, Rule 16
does.
“Once the district court had filed a pretrial scheduling order pursuant to Federal
Rule of Civil Procedure 16 which established a timetable for amending pleadings[, Rule
16’s] standards control[.]” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08
(9th Cir. 1992). Although Rule 15 governs timely motions for leave to amend, once the
case management order’s amendment deadline has expired, the moving “party must first
satisfy the requirements of Rule 16, and then must demonstrate amendment is proper under
Rule 15.” Acosta v. Austin Elec. Servs. LLC, 325 F.R.D. 325, 328 (D. Ariz. 2018) (citing
Johnson, 975 F.2d at 608). Because the deadline to amend in this action has expired,
Plaintiff must satisfy both Rules 15 and 16. See Acosta, 325 F.R.D. at 328.
“Under Rule 16, a court may only modify a scheduling order for ‘good cause.’” Id.
(citing Fed. R. Civ. P. 16(b)(4)). “A court’s evaluation of good cause is not coextensive
with an inquiry into the propriety of the amendment under Rule 15.” Morgal v. Maricopa
Cnty. Bd. of Supervisors, 284 F.R.D. 452, 459 (D. Ariz. 2012) (cleaned up). “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. In other words, the focus of the inquiry is on the moving party’s reason
for seeking amendment. See Morgal, 284 F.R.D. at 459 (citing C.F. ex rel. Farnan v.
Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011)).
Courts within the Ninth Circuit apply the following three-part test to determine
whether a party acted diligently in Rule 16’s good cause inquiry:
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To demonstrate diligence under Rule 16’s “good cause” standard, the movant
may be required to show the following: (1) that he was diligent in assisting
the court in creating a workable Rule 16 order; (2) that his noncompliance
with a Rule 16 deadline occurred or will occur, notwithstanding his diligent
efforts to comply, because of the development of matters which could not
have been reasonably foreseen or anticipated at the time of the Rule 16
scheduling conference; and (3) that he was diligent in seeking amendment of
the Rule 16 order, once it became apparent that he could not comply with the
order.
See Morgal, 284 F.R.D. at 460 (cleaned up) (citing Jackson v. Laureate, Inc., 186 F.R.D.
605, 608 (E.D. Cal. 1999)).
The good cause inquiry ends if the moving party has not shown diligence in seeking
amendment. Cano v. Schriro, 236 F.R.D. 437, 439 (D. Ariz. 2006), aff’d, 269 F. App’x
755 (9th Cir. 2008). “The existence of prejudice to the opposing party might supply
additional reasons to deny a motion.” Id.
III. Discussion.
The Court does not find good cause to amend here for three reasons. First, Plaintiff’s
PFAC does not comply with Rules 8 and 10 of the Federal Rules of Civil Procedure.
Second, Plaintiff did not comply with LRCiv 15.1(a). Third, Plaintiff was not diligent in
seeking amendment.
A. Short and Plain Statement of the Claims.
The first issue the Court shall address is whether Plaintiff’s PFAC complies with
the Federal Rules of Civil Procedure. Under Rule 8, a pleading must contain a “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Rule 10 requires that “[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ.
P. 10(b).
While Rule 8 does not demand detailed factual allegations, “it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported
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by mere conclusory statements, do not suffice.” Id. “Where a complaint contains the factual
elements of a cause, but those elements are scattered throughout the complaint without any
meaningful organization, the complaint does not set forth a ‘short and plain statement of
the claim’ for purposes of Rule 8.” Saliba v. Fed. Aviation Admin., 348 F.R.D. 351, 353
(D. Ariz. 2025) (citation omitted). Leave to amend may be denied where a proposed
amended complaint does not comply with Rule 8. See Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058–59 (9th Cir. 2011) (affirming district court’s
denial of leave to amend where the proposed amended complaint failed to comply with
Rule 9).
Plaintiff’s PFAC does not comply with either Rule 8 or 10. First, Plaintiff’s PFAC
contains factual elements of each claim scattered throughout the PFAC without any
meaningful organization. See generally (doc. 22.) This lack of meaningful organization
would require Defendants—and the Court—to parse through the PFAC and guess which
facts apply to each claim. While minimally ambiguous claims are excusable, indeterminate
claims such as here are not.
Second, Plaintiff’s PFAC provides only “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” See Ashcroft, 556 U.S. at 678.
Each count in the PFAC utterly fails to meaningfully apply any facts to any cause of action.
Instead, Plaintiff solely lists out his claims without any analysis or application of facts. See,
e.g., (doc. 22 at 3.) For example, Plaintiff’s abuse of process claim solely states “Count V
– Abuse of Process.” (Id.)
Finally, Plaintiff’s PFAC fails to comply with Rule 10. Specifically, the assertions
contained within each count are in un-numbered paragraphs, making it difficult for
Defendants to comply with their own obligations under the Federal Rules. See, e.g., Fed.
R. Civ. P. 8(b)(1) (“In responding to a pleading, a party must: (A) state in short and plain
terms its defenses to each claim asserted against it; and (B) admit or deny the allegations
asserted against it by an opposing party.”).
In conclusion, Plaintiff’s PFAC fails to comply with either Rules 8 or 10. Allowing
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such a non-compliant Complaint to proceed would unduly prejudice Defendants because
Defendants would have to intuit which facts apply to each claim, and then respond hoping
that their intuition as to each claim is correct. Although Plaintiff—due to his pro se status—
is proffered greater leeway than a represented party would be, his status does not excuse
his failure to comply with the Federal Rules nor permit undue prejudice towards Defendant.
B. Attached Proposed Amended Pleading.
Plaintiff’s Motion likewise fails to comply with the Local Rules of Civil Procedure.
Specifically, Plaintiff fails to comply with LRCiv 15.1(a), which states that:
A party who moves for leave to amend a pleading must attach a copy of the
proposed amended pleading as an exhibit to the motion, which must indicate
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 proposed amended pleading must not incorporate by reference any part
of the preceding pleading, including exhibits.
LRCiv 15.1(a) (emphasis added).
Here, Plaintiff fails to comply with LRCiv 15.1(a) by failing to attach a proposed
amended pleading as an exhibit to his motion which indicates in what respects his PFAC
differs with his original Complaint. Although Plaintiff, as a pro se litigant, is granted wider
latitude in amendments than his represented peers, he is still bound by the Local Rules of
Civil Procedure. See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (affirming
dismissal of pro se plaintiff’s complaint for failure to comply with local rules).
Consequently, Plaintiff’s failure to comply with LRCiv 15.1(a) further militates towards
denying leave to amend.
C. Diligence.
The last issue the Court addresses is whether Plaintiff was diligent in seeking to
amend his Complaint. As stated above, the Rule 16 good cause inquiry ends if the moving
party has not been diligent in seeking amendment. Cano, 236 F.R.D. at 439.
Here, Plaintiff fails to establish that “his noncompliance with a Rule 16 deadline
occurred . . . because of the development of matters which could not have been reasonably
foreseen or anticipated at the time of the Rule 16 scheduling conference” or “that he was
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diligent in seeking amendment of the Rule 16 order, once it became apparent that he could
not comply with the order.” See Morgal, 284 F.R.D. at 460. Plaintiff neither alleges any
unforeseen or unanticipated circumstances that prevented him from filing a timely motion
to amend, nor establishes that any of the facts underlying his PFAC were unknown at the
time the Court entered its Case Management Order setting the amendment deadline.
Because Plaintiff has not established that he was diligent, the Court recommends
Plaintiff’s 126-day tardy Motion be denied.4
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4 Such denial of a tardy motion to amend complies with this District’s precedent,
which ““have found a lack of good cause for motions filed on the amendment deadline or
shortly thereafter.” MiCamp Sols. LLC v. Nat’l Processing LLC, No. CV-19-05468-PHX-
MTL, 2021 WL 289661, at *3 (D. Ariz. Jan. 28, 2021) (“denying a motion to amend after
new evidence was discovered one month before for lack of diligence); Brooks v. Eclipse
Recreational Vehicles, Inc., No. CV-08-1731-PHX-LOA, 2009 WL 1616017, at *3 (D.
Ariz. June 9, 2009) (denying a motion to amend filed 11 days after the deadline); Villa v.
Brass Eagle, LLC, No. CV-06-0870-PHX-FJM, 2007 WL 446349, *2 (D. Ariz. Feb. 7,
2007) (denying 3 month late unopposed motion for leave to amend). Although a 126-day
delay may appear to be minor, such a delay—without any showing of diligence—is
sufficient to deny a moving party’s motion to amend.
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Accordingly,
IT IS RECOMMENDED that Plaintiff’s Motion for Leave to File First Amended
Complaint (doc. 21) be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed until entry of the District Court’s judgment. The Parties shall have 14 days
from the date of service of a copy of this recommendation within which to file specific
written objections with the Court. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 6,
72. Thereafter, the Parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the
Magistrate Judge may be considered a waiver of a party’s right to appellate review of the
findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 6th day of February, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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