House v. Jones

Filing 111

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 89 MOTION for Leave to Amend 27 Answer to 6 Amended Complaint filed by Tara Leone, Ryder May be DENIED. By Magistrate Judge Nina Y. Wang on 4/5/2018. (nywlc1, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02418-WJM-NYW
DAEVON HOUSE,
Plaintiff,
v.
TARA LEONE, in her individual capacity
RYDER MAY, in his individual capacity,
HUDSON T. WHITE, in his individual capacity, and
UNKNOWN JOHN/JANE DOE(s),
Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This civil action comes before the court on Defendants’ Opposed Motion for Leave to
Amend Answer (“Motion to Amend”) [#89, filed February 2, 2018]. The Motion to Amend was
referred to the undersigned Magistrate Judge pursuant to the Order Referring Case dated January
23, 2017 [#32] and the memorandum dated February 5, 2018 [#90]. Having reviewed the
Motion to Amend and Plaintiff’s response thereto, the case file, and the applicable law, the court
respectfully RECOMMENDS that the Motion be DENIED.
BACKGROUND
Plaintiff Daevon House initiated this lawsuit on September 26, 2016, by filing pro se a
form Prisoner Complaint asserting a single claim pursuant to 42 U.S.C. § 1983 for deliberate
indifference in violation of his Eighth Amendment rights under the Constitution. [#1]. He
named Tara Jones and John/Jane Doe as Defendants. The court granted Mr. House leave to
proceed in forma pauperis under 28 U.S.C. § 1915, [#4], and ordered him to file an amended

pleading.

[#5].

On October 11, 2016, Mr. House filed an Amended Complaint adding

Defendants Ryder May and Hudson T. White.1 [#6]. Following a review pursuant to § 1915 and
Local Rule 8.1, the court reassigned the matter to the Honorable William J. Martinez, who
referred the case to the undersigned Magistrate Judge for pretrial management. [#7, #32].2 The
following facts are derived from the Amended Complaint.
Mr. House’s sole claim arises from Defendant Leone’s failure in her capacity as a nurse to
diagnose him with appendicitis, which resulted in his undergoing multiple surgeries and his
requiring the use of a colostomy bag, and Defendants May and White’s subsequent failure to
provide certain medical supplies to Plaintiff, including bandages and replacement colostomy bags.
See [#6]. On January 20, 2017, Defendants Leone and May filed an Answer. See [#27]. On
February 8, 2017, this court held a Status Conference and set certain pretrial dates, including a
deadline of May 9, 2017 by which to amend pleadings. See [#41].
On March 3, 2017, Mr. House submitted several medical documents attached to a motion to
supplement. See [#48-1]. The medical documents indicate that, in December 2014, Plaintiff
complained of severe abdominal pain and was “given fluids and returned to his unit”; was “seen
repeatedly for this issue and was eventually admitted to DH where he was found to have sepsis,
performated [sic] appendix”; and that he thereafter underwent “multiple abdominal surgeries…in
ICU on the vent and ended up [with] an ileostomy.” [Id.] The medical documents further indicate
that the perforated appendix was the cause of the abdominal pain Plaintiff had complained of

1

Although named by Plaintiff as Tara Jones and Ryder May, Defendants identified themselves in
their Answer as Tara Leone and May Ryder, see [#27 at 1 n.1], and the court directed that the
caption be amended to reflect their proper names. See [#41]. Mr. White has not been served in this
lawsuit.
2

Under § 1915(e)(2)(B), and facilitated by D.C.COLO.LCivR 8.1, the court must dismiss an action
if Plaintiff’s claims are frivolous or malicious. A legally frivolous claim is one in which the
plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not
support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
2 

when he was repeatedly returned to his cell, and that complications, including the rupture of his
appendix, required a three-month confinement in the intensive care unit. [Id. at 2-3].
On April 4, 2018, this court granted Mr. House’s motion for appointment of counsel. See
[#54, #56]. The following day, the court held a second Status Conference at which Plaintiff
voiced his intent to supplement his complaint and Defendants stated they did not oppose. See
[#57]. This court ordered Plaintiff to “file one comprehensive complaint,” on or before April 19,
2017. [Id.] The court subsequently extended that deadline to June 9, 2017. See [#60 at 2]. On
June 13, 2017, this court held a third Status Conference at which Plaintiff represented his intent to
proceed with the Amended Complaint, filed October 11, 2016. [#6]. For the purpose of clarity,
the court specified June 13, 2017 as the deadline for amending pleadings, and neither side
requested an extension. See [#70].
On September 5, 2017, counsel entered their appearance on behalf of Plaintiff, [#78-#80],
and soon thereafter filed an unopposed motion asking the court to extend various pretrial
deadlines. See [#82]. The motion did not seek to extend the June 13, 2017 deadline by which to
amend pleadings. The Parties then jointly moved the court for referral to the undersigned to hold
a settlement conference. See [#85]. The matter was set, and reset, for a settlement conference.
[#87, #88]. The settlement conference is now scheduled for May 24, 2018. [#105].
On February 2, 2018, Defendants filed the Motion to Amend seeking to amend their
Answer to add the affirmative defense that Plaintiff failed to exhaust his administrative remedies,
stating, “Counsel recently became aware of two things pertinent to this request to amend: (1) the
original answer filed by Defendants did not include language regarding defenses under the Prison
Litigation Reform Act (PLRA); and (2) Defendants appear to have legitimate defenses based on
the PLRA’s exhaustion requirement.” [#89 at 4]. Plaintiff filed a Response to the Motion to
Amend on February 16, 2018. [#92]. Defendants did not file a Reply. On March 15, 2018,

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Defendants filed a Motion for Summary Judgment asserting entitlement to qualified immunity
and the defense of failure to exhaust. See [#99].
Upon review of Defendants’ Motion for Summary Judgment, this court discerns that the
failure to exhaust defense is related to Defendant Leone’s theory that Mr. House failed to exhaust
his administrative remedies as to his allegation that she saw him on December 10, 2014 and
December 11, 2014, but ignored his complaints and delayed sending him to a hospital until
December 17, 2014. [#99 at 31-32, #99-3 at ¶ 14]. Mr. House returned to the custody of the
Colorado Department of Corrections on January 11, 2017, and thus Defendants contend that he
could have filed his administrative grievance within the time period required by the PLRA. [#99
at 31].
STANDARD OF REVIEW
Under Tenth Circuit law, courts employ a two-step analysis in determining whether to
allow a party to amend the pleadings after the deadline established by the Scheduling Order has
passed. First, the court considers whether the moving party demonstrates good cause pursuant to
Rule 16(b) of the Federal Rules of Civil Procedure. See Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l
Bank Assoc., 771 F.3d 1230, 1242 (10th Cir. 2014). If the moving party can demonstrate good
cause, the court then weighs whether the amendment should be allowed pursuant to Rule 15(a). Id.
Rule 16(b) provides that a scheduling order “may be modified only for good cause and with
the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “In practice, this standard requires the movant to
show the ‘scheduling deadlines cannot be met despite [the movant’s] diligent efforts.’” Gorsuch,
771 F.3d at 1240 (citing Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)).
This burden is satisfied, for example, when a party learns of new information in a deposition or that
the governing law has changed. Id. “Rule 16(b) does not focus on the bad faith of the movant, or
the prejudice to the opposing party. Rather, it focuses on the diligence of the party seeking leave to

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modify the scheduling order to permit the proposed amendment.”

Colo. Visionary Acad. v.

Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).
Rule 15(a) provides that leave to amend “shall be freely given when justice so requires.”
Fed. R. Civ. P. 15(a). The court may refuse leave to amend upon a showing of undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment. Frank v. U.S. West, Inc., 3 F.3d 1357,
1365 (10th Cir. 1993). Whether to allow amendment is within the trial court’s discretion. Burks v.
Oklahoma Publ'g Co., 81 F.3d 975, 978–79 (10th Cir. 1996).
ANALYSIS
Defendants argue first that Rule 16(b) does not apply to them because this court
erroneously failed to set a deadline to permit amendment:
There is thus far no deadline for the amendment of pleadings, based upon review of
the minute orders in the court’s docket report. Although Plaintiff’s Counsel sought
amendment of the scheduling order, the proposed amendment did not contemplate a
deadline to amend pleadings. [] The magistrate judge granted the proposed
scheduling changes, which did not include a deadline for amending the pleadings [].
[#89 at 4 (citing [#82, #84)]. Defendants then argue that there is no undue delay because they
“recently discovered facts which demonstrate the applicability of the exhaustion defense to this
case.” [Id. at 5]. And they argue that “Plaintiff cannot demonstrate undue prejudice,” and that the
amendment is not sought in bad faith or with dilatory motive because “Counsel only recently
became aware that exhaustion was indeed a potentially viable defense in this case…” [#89 at 10].
Plaintiff asserts that the court should apply Rule 16(b) to the Motion to Amend, and find
that Defendants failed to exercise diligence in seeking the amendment and now offer no adequate
reason for their delay. [#92 at 6-9, 10]. Plaintiff also contends the proposed amendment would
cause him prejudice because “[t]here are certain aspects of the exhaustion defense that require

5 

substantial discovery,” such as whether the Colorado Department of Corrections’s grievance
process was “available” to him, and the discovery period has closed. [Id. at 11, 13].
I.

Applicability of Rule 16(b)
First, this court considers whether the application of Rule 16(b) is appropriate here. During

a Status Conference held on February 8, 2017, the undersigned set May 9, 2017 as the original
deadline for amendment of pleadings. See [#41 at 2]. Plaintiff and defense counsel attended the
Status Conference. See [id.]. Plaintiff subsequently indicated that he wanted to supplement his
pleading, see [#42], and the court directed him to file an amended complaint by April 19, 2017, if
at all. See [#57]. Mr. House did not file an amended pleading, and this court sua sponte extended
the deadline to do so up to and including June 9, 2017, based on his pro se status. See [#60]. Mr.
House never filed an amended pleading, and, during a Status Conference held June 13, 2017, this
court clarified that the Amended Complaint [#6] and Answer thereto [#27] would continue to serve
as the operative pleadings. See [#70 at 1 (“[t]he deadline for joinder of parties and amendment of
pleadings is June 13, 2017.”)].

Plaintiff and counsel for Defendants attended the Status

Conference, and the minutes reflect that neither side opposed the deadline. See [id.]. Contrary to
Defendants’ assertion that “[a] review of the docket entries in this case demonstrates that no
deadline has been set for the amendment of pleadings,” [#89 at 3], these orders reflect that the court
set such a deadline. In addition, the deadline for amendment of pleadings was not subsequently
vacated by any later order of the court.
Rule 16 provides that the court must issue a scheduling order as soon as practicable, and
that the scheduling order “must limit the time to join other parties, amend pleadings, complete
discovery, and file motions.” Fed. R. Civ. P. 16(b)(2), (3)(A). The Rule also provides that “[a]
schedule may be modified only for good cause and with the judge’s consent.” Id. at 16(b)(4).
“The primary focus of amended Rule 16 is on the mechanics of pretrial conferences and

6 

scheduling. The purpose of Rule 16 is to insure early judicial intervention in the process of trial
preparation and proper conduct of that entire process.” Mulvaney v. Rivair Flying Serv., Inc. (In re
Baker), 744 F.2d 1438, 1441 (10th Cir. 1984) (“we are dealing with the matter most critical to the
court itself: management of its docket and avoidance of unnecessary burdens on the tax-supported
courts, opposing parties or both.”). As the Tenth Circuit has noted, “[it is] well within the district
court’s discretion to manage its docket and to avoid an unnecessary burden to itself and defendant.”
Whatcott v. City of Provo, 171 F. App’x 733, 735 (10th Cir. 2006) (citation omitted).
Defendants did not file a Reply or otherwise respond to Plaintiff’s recitation of the
procedural history, which identifies the two deadlines. To the extent that Defendants suggest that,
in granting Plaintiff’s subsequent motion to modify the scheduling order to extend certain pretrial
deadlines but not the deadline for amendment of pleadings, see [#82], this court entered an order
that vacated the already-lapsed deadline, see [#89 at 4 (“Although Plaintiff’s Counsel sought
amendment of the scheduling order, the proposed amendment did not contemplate a deadline to
amend pleadings…[t]he magistrate judge granted the proposed scheduling changes, which did not
include a deadline for amending the pleadings”)], such an interpretation is simply incorrect.
Litigants routinely move the court to modify a scheduling order in part, which is indeed the type of
relief Plaintiff sought. He asked to extend the deadlines associated with discovery, the designation
of expert witnesses, and the filing of dispositive motions. See [#82]. He did not seek to continue
the Final Pretrial Conference the court had previously set for January 12, 2018, see [#70 at 2].3 If
Defendants’ theory were correct, the court would be required to reset or restate all pretrial
deadlines every time a litigant moved to modify the scheduling order, even if the motion pertained
to only one date or deadline. The result would work an unnecessary burden on the court and result

3

The court sua sponte continued the Final Pretrial Conference in light of the requested extensions.
See [#84].
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in confusion to the parties.

See Fed. R. Civ. P. 16(b), Advisory Committee’s Note (1983)

(“[deadline for amendment of pleadings] assures that at some point both the parties and the
pleadings will be fixed, by setting a time within which joinder of parties shall be completed and the
pleadings amended,” and “the fixing of time limits serves to stimulate litigants to narrow the areas
of inquiry and advocacy to those they believe are truly relevant and material. Time limits not only
compress the amount of time for litigation, they should also reduce the amount of resources
invested in litigation. Litigants are forced to establish discovery priorities and thus to do the most
important work first.”) (quoting Report of the National Commission for the Review of Antitrust
Laws and Procedures 28 (1979)). See also Washington v. Arapahoe Cnty. Dep't of Soc. Servs.,197
F.R.D. 439, 441 (D. Colo. 2000) (“[a] Scheduling Order is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel without peril”). Absent any authority
supporting the interpretation that Defendants propose, this court rejects their argument and finds
that Rule 16(b) applies to the Motion to Amend.
II.

Application of Rule 16(b)
The court now turns to the application of Rule 16(b). As stated above, good cause under

Rule 16(b) focuses on the diligence of the parties rather than on any prejudice to the opposing side.
While Defendants do not assert an argument specific to Rule 16(b), the court ascertains a good
cause argument from their contention that they have not unduly delayed their request to amend.
See Minter, 451 F.3d at 1206 (instructing that in considering whether a party has unduly delayed,
courts focus primarily on the reasons for the delay). Thus the court reviews the record before it to
determine if Defendants have demonstrated diligence.
Defendants assert essentially two explanations for their delay in seeking to amend: they
only recently became aware of facts that “demonstrate the applicability of the exhaustion defense
to this case”; and they had “anticipated Plaintiff would file an amended complaint.” [#89 at 5, 6].

8 

Leave to amend may be appropriate where a party has learned of new information relevant to the
lawsuit. See Gorsuch, 771 F.3d at 1240 (citation omitted). However, here, the “new information”
Defendants refer to was always within their custody, possession, and control, and it appears that
Defendants did not review these materials until well into the discovery period when Plaintiff
requested their production. See [id. at 6-7]. For instance, Defendants state that on December 22,
2017, in response to Plaintiff’s Requests for Production, they disclosed all grievances filed by Mr.
House relating to medical treatment from December 9, 2014 to December 18, 2014. [Id. at 6].
Defendants represent that although Plaintiff “initially brought claims against Defendant Leone for
various interactions relating to his medical care, including 2014 and 2015,” Defendants realized
“[t]hrough the course of discovery [that] Plaintiff was only pursuing claims relating to December
of 2014,” and that Plaintiff had not filed grievances “regarding the alleged failure of Defendant
Leone to provide him with appropriate medical treatment in 2014 within the time frame required by
the relevant administrative regulations.” [Id. at 6-7]. Implicit in these arguments is that somehow,
Defendants needed discovery to determine the basis of Mr. House’s constitutional claim so that
they could in turn, determine that there was an applicable defense for failure to exhaust under the
PLRA.
As discussed above, Defendant Leone seeks dismissal of the claims asserting her alleged
lack of proper treatment of Mr. House on December 10 and 14, 2014, and her failure to send Mr.
House to the hospital until December 17, 2014. [#99 at 31-32]. Although Defendants contend that
the scope of Plaintiff’s claims narrowed “[t]hrough the course of discovery,” Mr. House expressly
asserted allegations arising from the alleged lack of treatment in December 2014 in his very first
Complaint, filed on September 26, 2016. [#1]. Defendants may not have become “aware” of
Plaintiff’s alleged failure to exhaust until their counsel began “reviewing documents in advance of
a scheduled settlement conference,” to occur February 7, 2018 [id. at 7], but they were on notice no

9 

later than September 26, 2016 that Mr. House was asserting violations of his constitutional rights
based on such treatment.

And while Defendants suggest that they were at some type of

disadvantage in ascertaining the applicability of the defense because their Answer deadline
approached “very shortly after [their] counsel became aware of the case and service on his clients,”
[#89 at 5], there is no explanation as to why Defendants failed to review documents related to Mr.
House’s administrative grievances until January 26, 2018. Indeed, the date Defendants decided to
review the grievances fell over a year after the original Complaint was filed, on September 26,
2016, see [#1], almost one year after discovery formally opened, see [#41 (scheduling order
entered February 8, 2017)], and seven months after being placed on notice that Mr. House did not
intend to further amend his operative pleading, see [#70]. “Demonstrating good cause under [Rule
16(b)] ‘requires the moving party to show that it has been diligent in attempting to meet the
deadlines, which means it must provide an adequate explanation for any delay.’” Strope v. Collins,
315 F. App’x 57, 61 (10th Cir. 2009)) (quoting Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir.
1994)).
This is not a scenario in which Plaintiff revealed late in discovery information relevant to
Defendants’ ability to assert an affirmative defense; indeed, Defendants were granted permission to
depose Plaintiff as early as February 8, 2017, see [#41], and again on May 25, 2017. See [#60].
Accordingly, Defendants had access to Plaintiff and his interpretation of the claims asserted well
before the June 13, 2017 deadline to amend pleadings. Moreover, the Motion to Amend indicates
that Defendants’ understanding of the applicability of the exhaustion defense was not based on
Plaintiff’s interpretation of his claims, but on their review of Plaintiff’s grievances. See [#89 at 67]. And there is no suggestion, nor could there be, that Defendants are unfamiliar with the
requirements of the PLRA. This court must conclude then, that Defendants’ failure to familiarize
themselves with the documents relevant to the exhaustion defense until just prior to the settlement

10 

conference demonstrates a lack of diligence on their part, the very essence of the Rule 16(b)
inquiry. See Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987) (denying
motion to amend answer where defendant possessed at the time the lawsuit was filed “documents
from which it could have discovered and asserted the defense”). See also Colo. Visionary Acad.,
194 F.R.D. at 687 (“Carelessness is not compatible with a finding of diligence and offers no reason
for a grant of relief”) Ayon v. Kent Denver School, No. 12–cv–2546–WJM–CBS, 2014 WL 85287
(D. Colo. Jan. 9, 2014) (denying motion to amend answer in part where defendants’ actions, or
failure to take action, was the cause for their seeking to amend their pleading seven months after
the deadline for amendment had lapsed). For these reasons, this court finds that Defendants fail to
demonstrate that they were unable to meet the deadline governing amendment of pleadings despite
their diligent efforts.4 Because this court finds that Defendants fail to satisfy Rule 16(b), it declines
to engage in a Rule 15(a) analysis. See Petekeiwicz v. Stembel, No. 13–cv–01865–RM–KLM, 2015
WL 1740386, at *4 (D. Colo. April 14, 2015) (“If good cause is not shown, the Court is not
required to consider whether Rule 15(a) excuses that failure”) (citing First City Bank, N.A. v. Air
Capitol Aircraft Sales, Inc. 820 F.2d 1127, 1132 (10th Cir. 1987) (“We hold that a district court
acts within the bounds of its discretion when it denies leave to amend for untimeliness or undue
delay”) (further citation and quotation marks omitted)). See also Lewis v. Wells Fargo Bank NA,
No. 11–cv–03387–CMA–KLM, 2012 WL 4097709, at *11 n.4 (D. Colo. Aug. 21, 2012).

4

In so concluding, this court makes no finding as to Defendants’ assertion that they may raise the
affirmative defense of failure to exhaust in their Motion for Summary Judgment, regardless of
whether they are permitted to amend their Answer. See [#89 at 9]. That Motion for Summary
Judgment is pending before Judge Martinez, and has not been referred to this court for
Recommendation.
11 

Accordingly, this court respectfully RECOMMENDS that Defendants’ Opposed Motion
for Leave to Amend Answer [#89] be DENIED. 5

DATED: April 5, 2018

BY THE COURT:

United States Magistrate Judge

5

Within fourteen days after service of a copy of the Recommendation, any party may serve and file
written objections to the Magistrate Judge’s proposed findings and recommendations with the
Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not
put the District Court on notice of the basis for the objection will not preserve the objection for de
novo review. “[A] party’s objections to the magistrate judge’s report and recommendation must be
both timely and specific to preserve an issue for de novo review by the district court or for
appellate review.” United States v. One Parcel of Real Property Known As 2121 East 30th Street,
Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar
de novo review by the District Judge of the Magistrate Judge’s proposed findings and
recommendations and will result in a waiver of the right to appeal from a judgment of the district
court based on the proposed findings and recommendations of the magistrate judge. See Vega v.
Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s decision to review a Magistrate
Judge’s recommendation de novo despite the lack of an objection does not preclude application of
the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining
Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the
Magistrate Judge’s order, cross-claimant had waived its right to appeal those portions of the
ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file
objections, plaintiffs waived their right to appeal the Magistrate Judge’s ruling). But see, MoralesFernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the
interests of justice require review).
12