Tivis v. Stock et al
ORDER. Plaintiff's 122 Motion for Leave to Amend the Operative Complaint is granted. The Clerk of Court is directed to file Plaintiff's Proposed Second Amended Complaint (Doc. No. 122-1). Defendant's 127 Motion to Dismiss Amen ded Complaint is dismissed without prejudice as moot as it is now directed as an inoperative pleading. Scheduling Conference reset for 9/5/2013 at 10:15 AM before Magistrate Judge Kathleen M. Tafoya. By Magistrate Judge Kathleen M. Tafoya on 6/25/13.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–02050–PAB–KMT
BEVERLY DOWIS, in her individual and official capacity as Health Service Administrator for
This matter is before the court on Plaintiff’s “Motion for Leave to Amend the Operative
Complaint.” (Doc. No. 122, filed May 6, 2013 [Mot. Am.].) The court also considers
Defendant’s “Motion to Dismiss Amended Complaint.” (Doc. No. 127, filed May 24, 2013.)
For the following reasons, Plaintiff’s Motion to Amend is GRANTED and Defendant’s Motion
to Dismiss is DENIED as moot.
Plaintiff, appearing pro se, filed his original Prisoner Complaint on August 5, 2011.
(Doc. No. 1.) Therein, Plaintiff asserted several claims pursuant to 42 U.S.C. § 1983, arising
primarily out of the aftermath of his total hip replacement surgery on June 29, 2009. On August
22, 2012, District Judge Philip A. Brimmer issued an order accepting in part and rejecting in part
this court’s Recommendation (Doc. No. 56) on Defendants’ prior Motion to Dismiss. (Doc No.
87.) Although Judge Brimmer concluded that Plaintiff failed to state a claim for relief, he also
found that “plaintiff may be able to state a plausible Eighth Amendment claim arising out of the
failure to treat [Plaintiff’s] staph infection.” (Id. at 5-6.) As such, Judge Brimmer permitted
Plaintiff “to file an amended complaint asserting an Eighth Amendment claim relating to the
treatment of his staph infection.” (Id. at 6.)
Plaintiff retained counsel and his attorney entered his appearance on Plaintiff’s behalf on
November 15, 2012. (See Doc. No. 94.) On April 30, 2013, pursuant to Judge Brimmer’s order,
Plaintiff filed an Amended Complaint asserting an Eighth Amendment claim against Defendant
Beverly Dowis relating to her alleged failure to address Plaintiff’s staph infection. (Doc. No.
In his current Motion to Amend, Plaintiff seeks leave to file a Second Amended
Complaint (Doc. No. 122-1) adding six additional claims for relief and five additional
defendants. More specifically, Plaintiff’s Proposed Second Amended Complaint seeks to add
the following individuals as Defendants: Nicole Wilson, a records technician at Sterling
Correctional Facility (SCF); (2) Dr. Paula Frantz, Chief Medical Officer for the Colorado
Department of Corrections (CDOC); (3) Meghan Reed, ADA Coordinator for the CDOC; (4)
Physician Health Partners, Inc. d/b/a Correctional Health Partners (CHP), an independent
contractor providing healthcare administration services to the CDOC; and (5) Dr. Steven Krebs,
Chief Medical Officer for CHP. Plaintiff’s Proposed Second Amended Complaint also seeks to
assert the following additional claims: (1) two claims under § 1983 for violations of the Eighth
Amendment against Ms. Wilson and Dr. Krebs, respectively; (2) a negligence claim against CHP
and Dr. Krebs; (3) an Americans with Disabilities Act (ADA) claim against Ms. Reed, Dr.
Frantz, and Defendant Dowis; (4) a Rehabilitation Act claim against Ms. Reed and Defendant
Dowis; and (5) a breach of contract claim against CHP.
Defendant filed a Response opposing Plaintiff’s Motion to Amend on May 28, 2013.
(Doc. No. 129.) Plaintiff filed his Reply on June 11, 2013. (Doc. No. 131.) Accordingly, this
matter is ripe for the court’s review and order.
Pursuant to Federal Rule of Civil Procedure 15(a), “The court should freely give leave [to
amend the pleadings] when justice so requires.” See also York v. Cherry Creek Sch. Dist. No. 5,
232 F.R.D. 648, 649 (D. Colo. 2005); Aspen Orthopaedics & Sports Medicine, LLC v. Aspen
Valley Hosp. Dist., 353 F.3d 832, 842 (10th Cir. 2003). The Supreme Court has explained the
circumstances under which denial of leave to amend is appropriate.
If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason - such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of the amendment, etc. the leave sought should, as the rules require, be “freely given.” Of course, the
grant or denial of an opportunity to amend is within the discretion of the District
Court, but outright refusal to grant the leave without any justifying reason
appearing for the denial is not an exercise of discretion; it is merely abuse of that
discretion and inconsistent with the spirit of the Federal Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Triplett v. LeFlore County, Okl., 712 F.2d
444, 446 (10th Cir. 1983). The Federal Rules reject the approach “that pleading is a game of
skill in which one misstep by counsel may be decisive to the outcome and accept the principle
that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson,
355 U.S. 41, 48 (1957).
Defendant argues that Plaintiff’s Motion to Amend should be denied because “Plaintiff
should not be permitted to amend his complaint outside of what has already been permitted by
the court.” (Resp. at 4.) Defendant maintains that Plaintiff should not be allowed to amend his
complaint in any manner outside the scope of the amended complaint authorized by Judge
The court does not construe Judge Brimmer’s order to foreclose Plaintiff from any and all
future amendments that otherwise comport with Rule 15(a). Judge Brimmer’s order merely
concluded that, although Plaintiff’s original Complaint failed to state a claim for relief, Plaintiff
had set forth facts in other court-filings suggesting that he might be able to state a cognizable
Eighth Amendment claim arising out the treatment of his staff infection. As such, rather than
dismissing the case in its entirety at that time, Judge Brimmer allowed Plaintiff an opportunity to
file an amended complaint asserting such a claim.
Since that time, Plaintiff has retained counsel and has apparently uncovered facts and
legal theories warranting the assertion of additional claims and joinder of additional parties. In
light of the liberal policy governing amendment to the pleadings, the court will not foreclose this
opportunity based on Defendant’s very narrow reading of Judge Brimmer’s Order.
Beyond that global objection, Defendant does not otherwise maintain that Plaintiff’s
proposed amendments are unduly delayed1 or prejudicial, or submitted in bad faith. Rather, in
the alternative to the argument discussed above, Defendant maintains that Plaintiff’s proposed
claims would be futile, at least insofar as they are targeted at her and proposed defendants Reed,
Wilson, and Frantz.
“It is true, as Defendant assert[s], that the court may deny leave to amend if the
proposed amendments fail to state plausible claims under Rule 12(b)(6).” Stender v. Cardwell,
No. 07-cv-02503-WJM-MJW, 2011 WL 1235414, at *3 (D. Colo. Apr. 1, 2011) (citing Gohier v.
Enright, 186 F.3d 1216, 1218 (10th Cir. 1999)). However, because Defendant does not maintain
that she will face any prejudice—let alone undue prejudice—if Plaintiff’s amendments are
permitted, the court finds it appropriate to defer this question until if and when Defendant and
the proposed defendants file appropriate dispositive motion(s) directed at Plaintiff’s Proposed
Second Amended Complaint. See id. (citing Minter v. Prime Equip. Co., 451 F.3d 1196, 1207
(10th Cir. 2006)) (noting that prejudice is the single most important factor in deciding whether to
grant leave to amend and finding that, in the absence of such prejudice, a party’s opposition to a
motion to amend is “grievously weakened”); see also General Steel Domestic Sales, LLC v.
The deadline for joinder of parties and amendment of pleadings was set for June 29,
2012. Nevertheless, neither party has addressed whether Plaintiff has shown good cause to
amend this scheduling deadline, pursuant to R. Civ. P. 16(b)(4). Because the Tenth Circuit “has
not yet considered whether Rule 16(b)(4) must be met when motions to amend pleadings would
necessitate a corresponding amendment of scheduling orders,” see United States ex rel. Ritchie v.
Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009), the court declines to raise this
issue sua sponte.
Steelwise, LLC, No. 07–cv–01145–DME–KMT, 2008 WL 2520423, at *4 (D. Colo. June 20,
2008) (recognizing that a futility argument under Rule 15(a) often places “the cart before the
horse.”). The court finds this course of action to be particularly prudent as Defendant does not
argue that Plaintiff’s proposed amendments against CHP and Dr. Krebs would be futile2 and,
therefore, the court is unwilling to reject Plaintiff’s Proposed Second Amended Complaint in
Altogether, in light of the liberal policy governing amendments to the pleadings, and in
order to preserve scare judicial resources, the court finds it appropriate to grant Plaintiff leave to
file his Proposed Second Amended Complaint. See Minter, 451 F.3d at 1204 (Rule 15’s purpose
“is to provide litigant the maximum opportunity for each claim to be decided on its merits rather
than on procedural niceties.”) Therefore, it is
ORDERED that Plaintiff’s “Motion for Leave to Amend the Operative Complaint” (Doc.
No. 122) is GRANTED. The Clerk of Court is directed to file Plaintiff’s Proposed Second
Amended Complaint (Doc. No. 122-1). It is further
ORDERED that Defendant’s “Motion to Dismiss Amended Complaint” (Doc. No. 127)
is DENIED without prejudice as moot as it is now directed at an inoperative pleading. See, e.g.,
Brunet v. The Quizno’s Franchize Co. LLC, No. 07–cv–01717–EWN–KMT, 2008 WL 4380590,
at *1 (D.Colo. Sept. 24, 2008). It is further
To be sure, Defendant likely did not argue that these proposed claims would be futile
because these individuals are not directly affiliated with the CDOC and therefore, if added as
defendants, may likely retain separate counsel.
ORDERED that the Scheduling Conference set for June 28, 2013 is VACATED and
RESET for September 5, 2013 at 10:15 a.m. Plaintiff shall serve the new defendants no later
than August 9, 2013 to allow them sufficient time to participate in preparing the proposed
Scheduling Order and appear at the Scheduling Conference. The parties shall file their proposed
Scheduling order no later than August 29, 2013.
Dated this 25th day of June, 2013.
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