Glasser v. King et al

Filing 343

ORDER that the Recommendation Regarding Plaintiffs Revised Motion to Amend Prisoner Complaint ECF No. 334 is AFFIRMED and ADOPTED. It is FURTHER ORDERED that Plaintiffs Revised Motion to Amend Prisoner Complaint ECF No. 319 be DENIED. Additionally, Plaintiffs Motion to Amend Prisoner Complaint ECF No. 313 is DENIED, by Judge Wiley Y. Daniel on 3/31/2016.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-0624-WYD-CBS
WAYNE GLASSER,
Plaintiff,
v.
CAROLE KING, RN.;
MICHAEL WALSH, PA,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with Magistrate Judge Craig B.
Shaffer’s Recommendation Regarding Plaintiff’s Revised Motion to Amend Prisoner
Complaint (ECF No. 334) (“Recommendation”), issued on December 1, 2015, which is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Magistrate Judge Shaffer recommends that Plaintiff’s motion to amend and file a third
amended complaint be denied. Plaintiff filed a similar motion to amend his second
amended complaint at ECF No. 313, which Magistrate Judge Shaffer held in abeyance
pending a revised version of the third amended complaint. See ECF No. 318. Plaintiff
notes that his Objection to the Magistrate Judge’s Recommendation pertains only to his
motion to amend at ECF No. 319. See Objection, ECF No. 338, p. 1.
Plaintiff is a pro se prisoner incarcerated at the Fremont Correctional Facility in
Canon City, Colorado. He filed this § 1983 action on March 12, 2012, claiming twenty-

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two counts against various defendants in relation to the allegedly negligent medical
treatment he received after he suffered a heart attack on March 26, 2010. On April 16,
2012, Plaintiff filed an Amended Complaint, adding six additional defendants. On
August 9, 2012, Plaintiff filed a motion to further amend his complaint, which was
granted, and the second amended complaint was filed on September 5, 2012. On
January 14, 2015, this Court adopted Magistrate Judge Shaffer’s recommendation that
a motion for summary judgment be granted in part and denied in part, allowing Plaintiff’s
Eighth Amendment claims against Defendants King and Walsh to proceed. All other
defendants were dismissed at that time. Subsequently on April 27, 2015, Plaintiff
requested permission to file a third amended complaint to add three new defendants –
officers that he had deposed on December 19, 2013 (fifteen months earlier), but which
were never added as defendants. Magistrate Judge Shaffer notified Plaintiff that his
request was impermissibly attempting to revive claims that had been dismissed through
summary judgment. Plaintiff then filed the current motion, ECF No. 319, and alleged
that during the depositions of these three officers, he discovered that they had “failed to
properly summon medical personnel which led to a delay” in his medical treatment.
Motion, ECF No. 319.
Magistrate Judge Shaffer recommends that the Court deny Plaintiff’s motion to
file a third amended complaint because the new claims are barred by the statute of
limitations, and because the new claims do not relate back to the filing of the original
complaint. Plaintiff argues that equitable tolling applies here based on fraudulent
concealment because he alleges that he did not know about the three officers’ roles
until they were deposed in December of 2013. Further, he argues that his new claims

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do relate back to the original complaint and should be allowed to proceed. I am vested
with discretion to review the Recommendation “under any standard [I] deem[]
appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see
also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that
Congress intended to require district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings”). Nonetheless, though not required to do so, I review the Recommendation to
“satisfy [my]self that there is no clear error on the face of the record.” See Fed. R. Civ.
P. 72(b) Advisory Committee Notes.
“Section 1983 claims accrue, for the purposes of the statute of limitations, when
the plaintiff knows or has reason to know of the injury which is the basis of his action.”
Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). Magistrate Judge Shaffer states
that the triggering event for the statute of limitations was the date of Plaintiff’s heart
attack – March 26, 2010. Equitable tolling would only apply if the defendants had
wrongfully impeded Plaintiff’s ability to assert the claim, or if truly extraordinary
circumstances prevented Plaintiff from filing his claim. See Chilcott Entertainment, LLC
v. John G. Kinnard Co., 10 P.3d 723, 726 (Colo. App. 2000). Plaintiff has not
sufficiently alleged that he was wrongfully impeded by the defendants, or that
extraordinary circumstances existed that would have prevented the filing of the claim
sooner. In his Objection, Plaintiff argues that the triggering event was actually the
deposition of these defendants in December of 2013, when he allegedly discovered
inconsistencies in their accounts. This is unpersuasive, however, because Plaintiff also
states that prior to filing his original complaint, “[h]e had his suspicions [about the

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involvement of the three officers], but nothing to substantiate them.” Objection, ECF
No. 338, p. 6. He also states that he consciously decided not to add these three
defendants until after the disposition of the summary judgment motion as a strategic
decision. Id. at 9. Plaintiff’s intentional decision to wait to add these three defendants
until April of 2015 was, by his own admission, a strategic choice. This is insufficient to
toll the statute of limitations, which I find began to accrue at the time of Plaintiff’s heart
attack on March 26, 2010. Accordingly, I agree that the statute of limitations should not
be equitably tolled to allow for a third amended complaint.
Even if the statute of limitations has not been tolled, Plaintiff argues that his
claims should nevertheless relate back to his original complaint. Rule 15(c) of the
Federal Rules of Civil Procedure states that an amendment to a pleading relates back
when:
(A) the law that provides the applicable statute of limitations allows relation
back;
(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.

Magistrate Judge Shaffer indicated that subsection C of the statute cannot be
satisfied here because there was no “mistake” made as to the parties’ proper identities.

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Plaintiff knew from the time of the original complaint that these three officers were
involved in the events that took place. Even Plaintiff’s allegation that he noted in his
original complaint that he might add an additional defendant later is not sufficient to
meet this subsection. The Tenth Circuit has held that “a plaintiff’s lack of knowledge of
the intended defendant’s identity is not a ‘mistake concerning the identity of the proper
party.’” Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004) (citations omitted).
Plaintiff argues that Rule 15(c) is a disjunctive statute, and that satisfying any one of the
three subsections allows for relation back. He argues that under subsection B, he is
attempting to add a new claim that arises out of the events set out in his original
complaint. However, this subsection refers to a new claim, not new defendants. It is
subsection C that concerns the addition of new defendants. Plaintiff may be asserting a
new claim, but the essence of what he seeks to do is add new defendants, and to
incorporate by reference the claims already made against existing defendants.
Focusing then only on subsection C, Plaintiff argues that his misunderstanding of
the role that these three officers played in the events that took place surrounding his
heart attack should be interpreted as a mistake, satisfying subsection C. He cites to a
non-binding decision out of the Northern District of Oklahoma where the court found that
a plaintiff’s addition of defendants related back to the original complaint because the
plaintiff had learned of their involvement only after the expiration of the statute of
limitations. See Estate of Gonzales v. Brown, 2014 U.S. Dist. LEXIS 133346, at *19
(N.D. Okla. 2014). That is not the case here, however. Here, Plaintiff admits that he
had suspicions about the three officers’ involvement at the time he filed the complaint,
but he chose not to add them as defendants at that time, or at the time of his second

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amended complaint in September of 2012, or even after he deposed them in December
of 2013. Plaintiff also argues that the Supreme Court’s decision in Krupski v. Costa
Crociere, 560 U.S. 538 (2010) stands for the proposition that when a plaintiff knows of a
party’s existence but misunderstands that party’s role in the events giving rise to the
plaintiff’s claims, that should be interpreted as a mistake, satisfying subsection C.
Plaintiff argues that this was the case here, and that he did not fully understand the
three proposed defendants’ roles until they were deposed in December of 2013.
However, the Court in Krupski noted that when a plaintiff makes a deliberate choice to
sue one party over another, this is “the antithesis of making a mistake concerning the
proper party’s identity.” Id. at 549. Here, Plaintiff made that deliberate choice, that
strategic choice, to not include the three officers as defendants in any of his pleadings,
including the time leading up to the disposition of the summary judgment motion. I am
not persuaded that Plaintiff “harbored a misunderstanding” about the role of these
officers and that he “mistakenly chose to sue only medical staff based on that misimpression.” Objection, ECF No. 338, p. 14. I find that Plaintiff’s claims do not relate
back to the filing of his original complaint.
Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. Accordingly, it is
ORDERED that the Recommendation Regarding Plaintiff’s Revised Motion to
Amend Prisoner Complaint (ECF No. 334) is AFFIRMED and ADOPTED. It is
FURTHER ORDERED that Plaintiff’s Revised Motion to Amend Prisoner
Complaint (ECF No. 319) be DENIED. Additionally, Plaintiff’s Motion to Amend
Prisoner Complaint (ECF No. 313) is DENIED.

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Dated: March 31, 2016
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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