Nival v. Clements et al

Filing 65

ORDER granting in part and denying in part 61 Motion to Strike or in the Alternative Enter Doc. 37 - Plaintiff's Tendered but Not Entered Second Amended Complaint. The Clerk of the Court is directed to enter Plaintiff's Amended Prisoner Complaint 37 as filed, by Magistrate Judge Michael E. Hegarty on 5/11/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01695-DME-MEH
PEDRO NIVAL,
Plaintiff,
v.
DR. JERE SUTTON, CCCF HMO Provider,
JUDY BREZENDINE, CCCF Clinical Services Director,
LYNN THOMPSON, CCCF Nurse Practitioner,
JANE DOE #1 (SANDY), JANE DOE #2 (MARY), and JANE DOE #3 (CHRISTIE), NURSING
STAFF, all in their official and individual capacities,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Defendant Sutton’s Motion to Strike or in the Alternative Enter Doc. 37 - Plaintiff’s
Tendered but Not Entered Second Amended Complaint [filed May 9, 2012; docket #61] is granted
in part and denied in part as follows. Because the relief granted benefits both Plaintiff and the
remaining Defendants, the Court decides the Motion without additional briefing.
I.

Background
Plaintiff initiated this action pro se on June 29, 2011, asserting nine claims against six named

defendants. (Docket #1.) Magistrate Judge Shaffer reviewed the original complaint and ordered
Plaintiff to file an amended complaint on or before August 5, 2011. (Docket #13.) After receiving
two extensions of time [dockets ##23, 24], Plaintiff filed a first amended complaint on December
29, 2011, adding a plaintiff (Aurora Nival) and several additional defendants. (Docket #27.) On
January 10, 2012, Judge Babcock issued an order dismissing the additional plaintiff and several

claims and defendants. (Docket #28.) Although Judge Babcock did not grant Plaintiff leave to
amend, Plaintiff attempted to conform his pleadings Judge Babcock’s order by submitting a second
amended complaint on February 7, 2012. (Docket #37.) In particular, Plaintiff represented that the
second amended complaint “[was] edited and it excludes the dismissed defendants per Order of the
Court...[and] no other significant changes were made...” (Docket #37 at 1.) The Clerk of the Court
correctly designated the document as tendered.
On March 16, 2012, Defendants Judy Brezendine, Lynn Thompson, Sandy Vasquez, Mary
Cardanes, and Christie Rusher (the “CCCF Defendants”) filed an answer linked to docket #37,
Plaintiff’s second amended complaint. (Docket #48.) Defendant Sutton also filed an answer, but
linked the document to docket #27, Plaintiff’s first amended complaint. (Docket #54.)
Recognizing the apparent confusion created by the tendered second amended complaint,
Defendant Sutton filed the present motion asking the Court to strike docket #37, or in the alternative,
to enter the document as the operative pleading. (Docket #61.) The Court finds that justice and
judicial efficiency are promoted by the latter request. According to the Court’s April 10, 2012
Scheduling Order, Plaintiff has until May 24, 2012, to file an amended complaint. (Docket #53.)
Therefore, the Court directs the Clerk of the Court to accept Plaintiff’s second amended complaint
[docket #37] as filed.
II.

Discussion
Rule 15 of the Federal Rules of Civil Procedure provides that, following a 21-day period for

service of the complaint or service of a responsive pleading or Rule 12 motion, a party may amend
its complaint only by leave of the court or by written consent of the adverse party. Fed. R. Civ. P.
15(a) (2011). Rule 15 instructs courts to “freely give leave when justice so requires.” Id.
Nevertheless, denying leave to amend is proper if the proposed amendments are unduly delayed,

unduly prejudicial, futile, or sought in bad faith. Foman v. Davis, 371 U.S. 178, 182 (1962); Frank
v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Because Plaintiff submitted his second amended complaint months before the deadline for
amendment of pleadings, the Court finds that it is not unduly delayed. Moreover, because the CCCF
Defendants have already filed an answer to the second amended complaint, accepting the document
as filed would not prejudice the CCCF Defendants in any material way. Finally, because Plaintiff
represents that the second amended complaint conforms to Judge Babcock’s order of partial
dismissal, the Court finds that amendment would not be futile. In sum, the Court finds that justice
requires leave to amend.
III.

Conclusion
For the reasons stated above, Defendant Sutton’s Motion to Strike or in the Alternative Enter

Doc. 37 - Plaintiff’s Tendered but Not Entered Second Amended Complaint [filed May 9, 2012;
docket #61] is granted in part and denied in part. The Clerk of the Court is directed to enter
Plaintiff’s Amended Prisoner Complaint [docket #37] as filed. Defendant Sutton shall respond to
the Plaintiff’s Amended Prisoner Complaint in accordance with Fed. R. Civ. P. 15 and all applicable
local and federal rules.
Dated at Denver, Colorado, this 11th day of May, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge