MEMORANDUM DECISION AND ORDER
This matter is before the Court on Plaintiff's motion for leave to file a third amended complaint. (Dkt. No. 71.) Plaintiff seeks leave to specifically identify several defendants previously designated in the First Amended Complaint (Dkt. No. 29) as John Does XI-XV. Although Plaintiff's motion requests only the replacement of Does XI-XV with named defendants in the caption, the proposed amended complaint (Dkt. No. 93)*fn1 sets forth different facts than those originally alleged in the first amended complaint and the new facts have the effect of altering the theory of the case against Nez Perce County. Defendant Nez Perce County opposes the motion, arguing that it should be denied because it was filed after the deadline for amendments and joinder of parties set forth in the Court's Scheduling Order (Dkt. No. 19) and on the grounds of undue delay and unfair prejudice.
The Court has reviewed the parties' filings, including Plaintiff's Third Motion to Amend (Dkt. No. 71), Jason Wood's Declaration in Support of Third Motion to Amend (Dkt. No. 72), Defendant Nez Perce County's Response (Dkt. No. 84), Plaintiff's Reply (Dkt. No. 85), and the Supplemental Responses filed by Defendants Nez Perce County and City of Lewiston (Dkt. Nos. 95 and 96).*fn2 The Court also entertained arguments from counsel during a telephonic hearing on the motion on December 1, 2010. For the reasons discussed below, the Court will grant Plaintiff's Third Motion to Amend. However, although the Court does not find that the Defendants will suffer prejudice sufficient to deny the amendment, the Court does find good cause for slight modification of the Scheduling Order in light of the additional allegations contained in the proposed amended complaint. Defendants will be allowed to serve supplemental expert witness disclosures strictly related to the additional facts alleged in the proposed amended complaint on or before January 10, 2011, and the deadline for filing dispositive motions will be extended to January 31, 2011.
Plaintiff Kevin Mays filed this action on December 19, 2008, alleging civil rights violations, assault, battery, and intentional infliction of emotional distress. Verified Complaint (Dkt. No. 1-1). The Complaint was filed against the City of Lewiston, several police officers, Nez Perce County, and Does I-V, further identified as agents, officials, and/or employees of the City of Lewiston, Idaho or County of Nez Perce, Idaho. The allegations in the original Complaint are based on a single incident occurring on or about December 23, 2006, when several officers with the Lewiston Police Department and Nez Perce County Sheriff's Department allegedly brutally attacked, beat and electrically shocked Plaintiff despite his cooperation with their requests.
The Scheduling Order entered in this case established December 2, 2009, as the deadline to join parties and amend pleadings. (Dkt. No. 19). Plaintiff filed his first Motion for Leave to Amend Complaint (Dkt. No. 20) on July 23, 2009. The motion sought to add causes of action relating to a second incident that allegedly occurred on or about November 17, 2008. Specifically, Plaintiff alleged in his first amended complaint that, while he was incarcerated at the Nez Perce County Jail on charges unrelated to the first incident, several members of the Nez Perce County Sheriff's Department viciously beat him in retaliation for filing the action against the Sheriff's Department related to the first incident. See Plaintiff's First Amended Complaint, at ¶ 69 ("Without provocation . . . the officers dragged Kevin from his cell and took him to an isolated area of the jail and savagely beat Kevin about the head, torso, back, legs, and arms, bashing his head off of the concrete and metal bed frames, nearly killing him.") (Dkt. No. 29).
The individual defendants allegedly involved in the second incident were fictitiously designated John Does XI-XV. On November 10, 2009, the Court granted Plaintiff's motion in part, allowing the inclusion of the second incident and the addition of the fictitiously designated defendants. See Order granting in part and denying in part Pl.'s Mot. to Amend Complaint (Dkt. No. 28).
Pursuant to the Court's Scheduling Order (Dkt. No. 19), the deadline for amendment of pleadings and joinder of parties elapsed on December 2, 2009. On December 18, 2009, Nez Perce County Defendants supplemented their initial disclosures and identified all individuals who may have knowledge regarding the second incident alleged in Plaintiff's first amended complaint and disclosed all documents in their possession related to the second incident. Nez Perce County's Resp. to Pl.'s Third Mot. to Amend Complaint (Dkt. No. 84). Approximately six months later, on June 29, 2010, Plaintiff took the deposition of a representative of Nez Perce County. See Dec. of Jason Wood in Supp. of Third Mot. to Amend Complaint (Dkt. No. 72).*fn3 Plaintiff represents that this deposition was the first time he learned the names of those specifically in charge of Plaintiff's care and custody during the relevant times and locations pertaining to the second incident. Id., at ¶ 8.
Plaintiff now has moved the Court for leave to file a third amended
complaint. (Dkt. No. 71).*fn4 Plaintiff's motion was
filed on July 13, 2010-less than one month after the June 29, 2010
deposition, but over eight months past the scheduling order deadline
for amendments. The motion seeks leave to substitute eight defendants
(all alleged agents or employees of Nez Perce County) in place of the
fictitious defendants named in the first amended complaint.*fn5
Plaintiff's proposed amended complaint also amends the
factual allegations concerning the second incident. In the First
Amended Complaint (Dkt. No. 29) Plaintiff alleges affirmative tortious
and unconstitutional actions undertaken by his custodians while
incarcerated at Nez Perce County Jail:
68. As Kevin rested in his cell, members of the Nez
Perce County Sherriff's Department, John Does XI through XV, approached Devin's cell intending to harass, intimidate, and influence Kevin's potential testimony in court.
69. Without provocation, on information and belief the officers dragged Kevin from his cell and took him to an isolated area of the jail and savagely beat Kevin about the head, torso, back, legs, and arms, bashing his head off of the concrete and metal bed frames, nearly killing him.
77. The officers' application of force was objectively excessive and unreasonable under the circumstances and constitutes a knowing and/or reckless violation of clearly established rights under the Fourth and Eighth Amendments of the United States Constitution.
Pl.'s Amend. Compl., at 12 (Dkt. No. 29). Plaintiff also pled in the alternative: "Kevin suffered an acute seizure with severe spasms and convulsions that alerted or should have alerted the officers to Kevin's seizure, to which John Does XI through XV were alerted." Pl.'s Amend. Compl., at ¶ 86 (Dkt. No. 29). In contrast to the factual allegations pled in the first amended complaint, Plaintiff's proposed third amended complaint alleges the following factual scenario:
68. In the days leading up to the night of November 16, 2008, Kevin began exhibiting symptoms of delirium tremens, or severe alcohol withdrawal, which symptoms each of the Nez Perce County jailers recognized in Kevin and which disease they each admitted was a potentially life threatening disease. Kevin's symptoms, including hallucinations and ultimately acts of self-harm, gradually increased in severity, until on November 16, 2008, Kevin was in the throes of delirium tremens severe enough that he repeatedly smashed his head against the door and walls of his cell.
69. The jailers learned of Kevin's behavior and observed his blood spilled on the floor and throughout his jail cell. The jailers made no effort to contact any medical personnel or notify anyone of higher authority to inquire what should be done to care for Kevin. Instead they did nothing more than shackle Kevin to a restraint chair for a period of time and then release [sic] him.
. . . 71. The jailers, acting under color of Idaho law, were deliberately indifferent to Kevin's serious medical condition and failed to take any action to provide aid for what they knew was not only a serious health condition but a potentially life-threatening disease, failed to notify any health care providers or anyone else who could assist Kevin, and otherwise failed to assist Kevin in any way, and otherwise exhibited callous disregard of Kevin's clearly established rights under the Eighth Amendment to the United States Constitution.
Pl.'s Prop. Third Amend. Compl., at 11-12 (Dkt. No. 93). Additionally, Plaintiff alleges deliberate indifference to a serious health condition by the jailers, in contrast to the excessive ...