Vitasek #269436 v. GEO Group Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Arthur L Vitasek,
Plaintiff,
v.
GEO Incorporated, et al.,
Defendants.
No. CV-24-00155-PHX-SHD (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE SHARAD H. DESAI, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is pro se Plaintiff Arthur L. Vitasek’s second “Motion for
Leave of Court to File an Amended Complaint” (“Second Motion to Amend”) (doc. 177),
and Defendants GEO Group, Inc.’s (“GEO”), Christine Armenta’s, and Courtney
Pochopien’s “Response to Motion for Leave of Court to File an Amended Complaint”
(“Response to Second Motion to Amend”) (doc. 183). Plaintiff failed to file a reply to
Defendants’ Response by the October 27, 2025, deadline. This Report and
Recommendation is filed pursuant to Judge Liburdi’s1 October 21, 2024, Order referring
this matter under Rules 72.1 and 72.2, Local Rules of Civil Procedure, for “all pretrial
proceedings as authorized under 28 U.S.C. § 636(b)(1).” (Doc. 11 at 15.)
In his Second Amended Complaint, Plaintiff Vitasek seeks to add a new Eighth
Amendment medical care claim against a new Defendant, Dr. Corinne Zachary, and
1 This case was reassigned to the Honorable Sharad H. Desai in the Court’s February
10, 2025, minute order. See (doc. 41.)
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attempts to revive a breach of contract claim against Defendant GEO and dismissed
Defendant State of Arizona (“State”). See (doc. 178 at 23–29.) Plaintiff’s Second Motion
to Amend is untimely as it was filed over six-months after the deadline to join parties and
amend pleadings had expired, over four-months after discovery was due, and filed less than
a month from the dispositive motion deadline. Compare (doc. 177) with (docs. 20, 175).
Further, Plaintiff’s lodged “Second Amended Complaint” (doc. 178) is unduly prejudicial
to Defendants, would result in undue delay, and is futile because the claim against Dr.
Zachary is time barred. Accordingly, the Court recommends that Plaintiff’s Second
Motion to Amend be denied and the lodged Second Amended Complaint be stricken.
I. Background.
On January 23, 2024, Plaintiff commenced this action by filing a Complaint. See
generally (doc. 1.) Thereafter, on March 6, 2024, Plaintiff filed his three-count First
Amended Complaint. See (doc. 6.) The First Amended Complaint’s counts were: (1) an
Eighth Amendment medical care claim; (2) a retaliation claim due to his “exercise [of] his
[First] Amendment right to Free Speech for filing a grievance”; and (3) a breach of contract
claim premised on the notion that he is a third-party beneficiary of GEO and the State of
Arizona’s contract. (Id. at 8, 19–20, 25–26.) These allegations are based upon his efforts
to receive treatment for Dupuytren’s Contracture, briefly discussed below. See generally
(id.)
In August of 2013, Plaintiff began to develop “cords” in his hands while he was
held in an Arizona Department of Corrections facility. (Doc. 11 at 3.) Over time, the cords
in his hands thickened, pulled his pinky and ring fingers into a 90-degree angle, and
prevented him from laying his hands flat and completing “simple tasks.” (Id.) (quoting
(doc. 6 at 9)).
In April of 2019, Plaintiff was moved to a facility operated by Defendant GEO.
(Doc. 11 at 3.) It was at this facility that Plaintiff was diagnosed with Dupuytren’s
Contracture. (Id.) This condition caused Plaintiff extreme pain and caused periodic
numbness in his hands. (Id. at 3–4.) Between arriving at the GEO facility and November
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17, 2020, Plaintiff saw several GEO medical care providers who proscribed non-surgical
treatment for his hands, but these treatments were denied or not followed. (Id. at 4.)
Specifically, on November 17, 2020, Plaintiff saw a licensed practical nurse who referred
Plaintiff to see a hand specialist, but because of the pandemic, Plaintiff was unable to see
the specialist. (Id.)
On June 20, 2022, Plaintiff “began to press the issue of needing to see a hand
specialist.” (Id.) (quoting (doc. 6 at 13)). Between June 30, 2022, and November 1, 2022,
Plaintiff met with two doctors and a licensed practical nurse, who noted that Plaintiff had
had Dupuytren’s Contracture “for years,” and requested and performed an x-ray of
Plaintiff’s “neck, spine, and hands.” (Doc. 11 at 5) (quoting (doc. 6 at 13)).
On November 2, 2022, Plaintiff saw Defendant Armenta, who told Plaintiff that he
would not be provided treatment for his condition because he could eat and put on clothes.
(Doc. 11 at 5.) Plaintiff informed Defendant Armenta that he had already met with four
doctors who referred him to a hand specialist, but Armenta responded that “the doctors
were ‘full of bullshit,’ she did not ‘feed bullshit,’ and [advised] Plaintiff to ‘hire a lawyer.’”
(Id.) (quoting Doc. 6 at 15)). After this meeting, Plaintiff commenced the grievance
process. (Doc. 11 at 5–6.)
On December 16, 2022, Plaintiff saw Defendant Pochonien, who allegedly refused
to allow Plaintiff to see a doctor because of Defendant Armenta’s decision. (Id. at 7.)
Plaintiff alleges that Defendant Pochonien concocted false allegations that Plaintiff
threatened her and “made a pass toward her.” (Id. at 8) (quoting doc. 6 at 22)).
After screening, the Court dismissed: (1) Defendants CCHP, Coday, Mardesich,
Thornell, Wheeler, and the State of Arizona; and (2) Plaintiff’s breach of contract claim.
(Doc. 11 at 13.) But, the Court allowed Plaintiff’s: (1) Eighth Amendment medical claim
against Defendants Armenta and GEO to proceed; and (2) retaliation claim against
Defendant Pochonien to proceed. (Id. at 10–11.)
II. Legal Standards.
The Federal Rules of Civil Procedure permits a party to amend its complaint before
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trial. Fed. R. Civ. P. 15(a). Because the deadline to amend as a matter of course has passed,
Plaintiff may only amend his pleading “with the opposing part[ies’] written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2).
Generally, “[t]he [C]ourt should freely give leave [to amend] when justice so
requires.” Id. While there is a “strong policy permitting amendment,” Thomas-Lazear v.
F.B.I., 851 F.2d 1202, 1206 (9th Cir. 1988), this presumption is not conclusive. See Moore
v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). Leave to amend may be
denied based on the “presence . . . of undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies by previous amendments, undue prejudice to the opposing party
and futility of the proposed amendment.” Id.; Kroessler v. CVS Health Corp., 977 F.3d 803
(9th Cir. 2020). “Futility of amendment can, by itself, justify the denial of a motion for
leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Further, leave to
amend may be denied where the “complaint, as amended, is subject to dismissal.” Moore,
885 F.2d at 538.
Where a party attempts to amend a complaint after a pretrial scheduling order has
been entered, and after the deadline for amendments has passed, the liberal Rule 15(a)(2)
standard is instead replaced by the “good cause” requirement of Rule 16(b). See Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (“[A] party seeking to
amend [a] pleading after date specified in scheduling order must first show ‘good cause’
for amendment under Rule 16(b)[.] [T]hen, if ‘good cause’ be shown, the party must
demonstrate that amendment was proper under Rule 15[.]”) (cleaned up); see also
AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 952 (9th Cir. 2006) (“Put
simply, the party could not appeal to the liberal amendment procedures afforded by Rule
15; his tardy motion [must] satisfy the more stringent ‘good cause’ showing required under
Rule 16.”) (emphasis added).
III. Discussion.
Because Plaintiff Vitasek’s Second Motion to Amend is 187 days late, the liberal
Rule 15(a)(2) standard is replaced with Rule 16’s “good cause” standard. See Johnson, 975
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F.2d at 608. To determine whether good cause exists to permit tardy amendment, the Court
embarks upon a two-step inquiry, namely: (1) “whether Plaintiff has demonstrated “good
cause” to modify the Case Management Order under Rule 16(b) of the Federal Rules of
Civil Procedure”; and (2) “whether Plaintiff’s proposed amendment should be granted
under the standards of Rule 15 of the Federal Rules of Civil Procedure.” Vicente v. City of
Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 1346075, at *1 (D. Ariz. Apr. 3, 2014).
Additionally, the Court will address whether Plaintiff states a claim against Defendant Dr.
Zachary upon which relief may be granted. The Court will address each matter in turn.
A. Good Cause.
The Court does not find that good cause exists to warrant Plaintiff’s Second Motion
to Amend to proceed. Rule 16(b)’s “good cause” standard is primarily focused upon the
diligence of the party seeking an amendment of a pleading. See Johnson, 975 F.2d at 609.
“If that party was not diligent, the inquiry should end.” Mitchell v. State Farm Fire & Cas.
Co., No. CV-22-00477-TUC-JAS (MAA), 2024 WL 1977690, at *2 (D. Ariz. Apr. 4, 2024)
(quoting Johnson, 975 F.2d at 609). “[C]arelessness is not compatible with a finding of
diligence and offers no reason for a grant of relief.” Johnson, 975 F.2d at 609.
In analyzing whether a party was diligent, courts will “typically consider the amount
of time between the discovery of the new information and when the party requested leave
to amend.” Leibel v. City of Buckeye, No. CV-18-01743-PHX-DWL, 2019 WL 4736784,
at *2 (D. Ariz. Sept. 27, 2019). While permitting a party to amend their pleading based on
newly obtained information “is common and well established, . . . new information alone
is not good cause for modifying a scheduling order[.]” Stonney Biddings v. Frias, No. CV-
20-00037-TUC-RM, 2021 WL 3270317, at *2 (D. Ariz. July 30, 2021).
The Court finds Vincente v. City of Prescott to be instructive in this matter. In
Vincente, the plaintiff sued all for defamation per se, among other claims such as unlawful
retaliation and discrimination. Vincente, 2014 WL 1346075, at *1. During a deposition
conducted nearly two years after the action began, the plaintiff discovered details regarding
a colleague’s publication that provided grounds for a defamation claim, but waited two
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months to amend his complaint, which was more than 90 days after the deadline to amend
expired. Id. Plaintiff had claimed that “he was diligent in his efforts to establish a factual
basis to re-allege defamation per se . . . but that defense counsel frustrated his efforts to
discover information that would give him a factual basis for the claim.” Id. at *2. The Court
determined that good cause for the modification did not exist, reasoning that: (1) “th[e]
case has been pending for more than two years; (2) “[p]laintiff had more than 19 months
to conduct discovery”; and (3) “[p]laintiff has claimed since the complaint was filed that
he was defamed.” Id.
This Court likewise finds that Plaintiff was not diligent in amending his complaint.
While it is true that Plaintiff’s Second Motion to Amend was filed only eight days after
discovering new information as it pertained to Dr. Zachary, see (docs. 174, 177), Plaintiff,
since filing his complaint, has claimed that GEO and its staff had failed to properly treat
his Dupuytren’s Contracture. It is also clear that Plaintiff knew on or before April 21, 2025,
that Defendant GEO had a medical review board that approves or denies referrals and
treatment as he sent out his request for interrogatories inquiring about the board on that
date. See (docs. 86, 148 at 13.) Additionally, Plaintiff waited a month-and-a-half between
receiving Defendant GEO’s response to his interrogatories to file a motion to compel an
answer to the interrogatories as they pertained to GEO’s medical review board. See (docs.
111, 137.)
While Plaintiff notes that Defendant GEO’s counsel “was unwilling to provide
anything that would assist the Plaintiff[,]” (doc. 177 at 1), frustration brought on by an
opposing party’s counsel is not enough to establish good cause. See Vincente, 2014 WL
1346075, at *2 (noting that the plaintiff failed to act diligently when filing a tardy motion
to amend to defense, even though the plaintiff claimed that “defense counsel frustrated his
efforts to discover information that would give him a factual basis for the claim”). Rather,
this action had been over 20 months old by the time Plaintiff filed his Second Motion to
Amend. Plaintiff had actual or constructive knowledge of the medical review board on or
before late April 2025, but he did not move to amend his pleading at that point, and waited
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46 days to file a motion to compel answers to interrogatories. Therefore, the Court does
not find good cause permitting a Second Motion to Amend to proceed.
B. Prejudice, Undue Delay, and Futility.
Regardless of the presence or absence of good cause, the Court finds that the Second
Motion to Amend is prejudicial, would cause undue delay, and is futile. All three of which
require denial of leave to amend.
1. Prejudice.
Starting with undue prejudice, the Court notes that “[a] party is prejudiced from an
amended complaint when the amendments rely on different theories of liability and compel
different discovery from the original claims.” Cross v. Nanos, No. CV-24-00506-TUC-
RCC, 2025 WL 1940007, at *2 (D. Ariz. July 15, 2025) (citing Jackson v. Bank of Haw.,
902 F.2d 1385, 1388 (9th Cir. 1990)). “The party opposing amendment bears the burden
of showing prejudice.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
In their Response to Second Motion to Amend, Defendants note that Plaintiff is
attempting to add an entirely new claim for Eighth Amendment medical indifference
against an entirely new Defendant—Dr. Zachary. (Doc. 183 at 5.) This amendment comes
after the close of discovery, “on the heels of dispositive motions which Defendants are
currently preparing to file[,]” and would require re-opening of discovery which “unfairly
prolong[s the] resolution of this lawsuit for the existing Defendants[.]” (Id.)
The Court agrees. The addition of a new Defendant half a year after the deadline to
do so expired would greatly delay this matter, necessitating new service of process, a new
answer or Rule 12 motion to be filed, and requiring discovery to be re-opened regarding
the new Defendant. Such a delay would contradict a just and speedy resolution of this
matter, an outcome that benefits both sides in this matter. And, allowing an amendment
adding new claims and defendants, which was filed after the deadline for discovery
expired, would run contrary to this District precedent. See, e.g., Cano v. Schriro, 236
F.R.D. 437 (D. Ariz. 2006), aff’d, 269 F. App’x 755 (9th Cir. 2008) (“Defendants would
be unduly prejudiced should Plaintiff be allowed to amend his complaint at this late date
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to add a claim or to add defendants.”). Accordingly, Plaintiff’s Second Motion to Amend
is unduly prejudicial.
2. Undue Delay.
For substantially similar reasons, Plaintiff’s Second Motion to Amend causes undue
delay. First, Plaintiff’s Second Motion to Amend was filed 187 days late, and right before
the dispositive motion deadline expires. See (doc. 20.) As stated by the Court in Somoza-
Vega:
[G]ranting leave to amend would essentially start the case over with respect
to the new defendants. They would need to be served with process and new
discovery conducted with respect to their involvement in the incident, if any,
and likely the entry of another case management order. It would add more
delay and expense in reaching the merits of Plaintiff’s claims, and render it
less likely the Court and parties could substantially meet the congressional
recommended guideline, established in the Civil Justice Reform Act, that a
trial be held eighteen months after the Complaint was filed. See 28 U.S.C. §
473(a)(2). An amended complaint with new defendants at this late stage is
also inconsistent with Rule 1, Fed. R. Civ. P. (“These rules . . . shall be
construed and administered to secure the just, speedy, and inexpensive
determination of every action.”) (emphasis added).
Somoza-Vega v. Brown, No. CV-12-1618-PHX-SRB, 2013 WL 4827994, at *4 (D. Ariz.
Sept. 10, 2013). Accordingly, granting Plaintiff’s Second Motion to Amend would result
in undue delay.
3. Futility.
Finally—and in any event—Plaintiff’s Second Motion to Amend is futile. First,
insofar as Plaintiff seeks to revive claims against the currently dismissed Defendants, he
fails to allege sufficient new information to cure the deficiencies noted in the Court’s
Screening Order. Compare (doc. 178) with (doc. 11). Secondly, as it relates to Dr. Zachary,
the Court agrees with Defendant that the claims against her are time-barred as Plaintiff’s
proposed second Amended Complaint. See (doc. 183.)
“Because 42 U.S.C. § 1983 does not contain its own limitations period, federal
courts ‘borrow the statute of limitations for § 1983 claims applicable to personal injury
claims in the forum state.’” Miller v. Gordan, No. CV-21-1867-PHX-DGC, 2024 WL
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1832463, at *2 (D. Ariz. Apr. 26, 2024) (quoting TwoRivers v. Lewis, 174 F.3d 987, 991
(9th Cir. 1999)). Because the forum state is Arizona, the statute of limitations period is two
years. See A.R.S. § 12-542.
Plaintiff does not allege any specific dates regarding Dr. Zachary. See (doc. 178.)
The latest date mentioned in his Fourth claim notes a referral sent on December 22, 2021,
which was allegedly denied by Dr. Zachary. Therefore, based on the last date mentioned
being December 22, 2021, the two-year statute of limitation would expire on December
23, 2023. See Miller, 2024 WL 1832463, at *2 (noting that claims filed after the statute of
limitations has expired are time barred).
Plaintiff Vitasek argues that his new claim against Dr. Zachary is not time barred as
it relates back to his original Complaint under Rule 15(c)(1)(B). (Doc. 177 at 2.) Rule 15(c),
in pertinent part, states:
(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:
* * *
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—
in the original pleading; or
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within
the period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s
identity.
Fed. R. Civ. P. 15(c).
Rule 15(c)(1)(C) establishes the standard to determine whether an amended
pleading relates back to the original pleading. See Butler v. Nat’l Cmty. Renaissance of
Cal., 766 F.3d 1191, 1202 (9th Cir. 2014) (citing Krupski v. Costa Crociere S. p. A., 560
U.S. 538, 541 (2010)). To relate back to the original, an amended pleading must fulfill the
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following requirements: (1) “the basic claim must have arisen out of the conduct set forth
in the original pleading”; (2) “the party to be brought in must have received such notice
that it will not be prejudiced in maintaining its defense”; and (3) “that party must or should
have known that, but for a mistake concerning identity, the action would have been brought
against it[.]” Schiavone v. Fortune, 477 U.S. 21, 29 (1986). The second and third criterion
must be satisfied “within 120 days after the original complaint is filed[.]” Butler, 766 F.3d
at 1202; see also Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 468 (2d Cir. 1995),
modified, 74 F.3d 1366 (2d Cir. 1996) (“[T]he second and third criteria must have been
fulfilled within the established limitations period.”). Additionally, “an amendment will not
relate back where the amended complaint had to include additional facts to support the new
claim.” Echlin v. PeaceHealth, 887 F.3d 967, 978 (9th Cir. 2018) (cleaned up).
There is no dispute that the first criterion is satisfied in this case. The issue arises
when turning to the second and third criterion. First, it is unclear whether Dr. Zachary
received notice of the lawsuit in question. While Dr. Zachary is an employee of GEO, this
fact alone is insufficient to establish notice. See Somoza-Vega, 2013 WL 4827994, at *6
(“Plaintiff claims because the proposed new defendants ‘work in the same prison,’ and
‘conduct the same job, in the same location’ as the original defendants, there is sufficient
community of interest to impute notice on the proposed new defendants[.] The Court
disagrees.”) (cleaned up and emphasis added). Second, and for similar reasons, the Court
does not find that Dr. Zachary “must or should have known that, but for a mistake
concerning identity, the action would have been brought against [her].” See Schiavone, 477
U.S. at 29. In the absence of evidence—outside of the purely speculative—establishing Dr.
Zachary had notice of the suit, it would be unlikely to find that she knew or should have
known an action would be brought against her. Finally, the amendment, insofar as it relates
to Dr. Zachary, does not relate back to the original because the Second Amended
Complaint includes additional facts supporting a wholly new Eighth Amendment medical
care claim. See Echlin, 887 F.3d at 978. For the foregoing reasons, the Court finds
Plaintiff’s Second Motion to Amend to be futile.
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IV. Conclusion.
For the reasons mentioned above, the Court does not find good cause to permit
Plaintiff’s Second Motion to Amend to proceed, and in any event, Plaintiff’s Second
Amended Complaint unduly prejudices Defendants, would cause undue delay in this
action, and is futile. Therefore, the Court recommends that Plaintiff’s Second Motion to
Amend (doc. 177) be denied and his Second Amended Complaint (doc. 178) be stricken.
Accordingly,
IT IS RECOMMENDED that Plaintiff Arthur L. Vitasek’s second Motion for
Leave of Court to File an Amended Complaint (doc. 177) be DENIED.
IT IS FURTHER RECOMMENDED that Plaintiff’s lodged Second Amended
Complaint (doc. 178) be STRICKEN.
Dated this 29th day of October, 2025.
Honorable John Z. Boyle
United States Magistrate Judge
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, 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 Report and
Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
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findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
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