Williams v. Mercer et al
ORDER: Construing the Plaintiff's 53 Motion for Leave to Amend Complaint as a notice of voluntary dismissal, all claims against Defendants Jonathan Hansen, Michael Snell, Jay Rocchi, and Sherry Rogers are DISMISSED. The Clerk of Court is directed to terminate these defendants from the action. The motion is DENIED in all other respects. By Chief Judge Marcia S. Krieger on 10/12/2017. (msklc3)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-CV-2773-MSK-CBS
RICKY MERCER, in his individual capacity;
THE ESTATE OF ROY HAVENS, in his individual capacity, by and through its Personal
Representative, LINDA HAVENS;
JODI JOHNSON, in her individual capacity;
DONNA GUYETT, in her individual capacity;
SHERRY ROGERS, in her individual capacity;
TRUDY SICOTTE, in her individual capacity;
MICHAEL SNELL, in his individual capacity;
JAY ROCCHI, in his individual capacity;
JONATHAN HANSEN, in his individual capacity; and
JOHN DOE DEFENDANTS, in their individual capacities,
ORDER ON MOTION TO AMEND COMPLAINT
THIS MATTER comes before the Court on the Plaintiff’s Motion for Leave to Amend
His First Amended Complaint (# 53), the Defendants’ Response (# 55), and the Plaintiff’s Reply
(# 57). For the following reasons, the motion is denied.
Plaintiff Allen Williams initiated this action on November 14, 2016. Mr. Williams’
claims are based on the allegation that he was provided constitutionally inadequate treatment when
he suffered a warning strokes and a subsequent full stroke in May 2015 at the Fremont
Correctional Facility, where he is incarcerated. In January 2017, he filed a First Amended
Complaint (# 15) asserting the following causes of action under 42 U.S.C. § 1983 and the Eighth
Amendment: deliberate indifference to his warning strokes, deliberate indifference to his full
stroke, deliberate indifference in the Defendants’ entire course of conduct, and three claims of
conspiracy corresponding to the foregoing deliberate-indifference claims. In addition, Mr.
Williams brought a claim for negligence under state law.
The Scheduling Order (# 40) required the parties to (1) amend pleadings by June 7, 2017,
(2) complete discovery by September 5, 2017, and (3) file dispositive motions on or before
September 5, 2017. Mr. Williams filed the pending motion to amend on August 1, 2017. He
seeks to amend his First Amended Complaint to add as a defendant Supplemental Health Care
(SHC), the employer of some defendants, with regard to the negligence claim, and dismiss claims
against Jonathan Hansen, Michael Snell, Jay Rocchi, and Sherry Rogers as defendants.
A two-step analysis is used to determine whether to allow amendment to the pleadings
after the passing of the deadline established by the scheduling order. First, the Court considers
whether the movant has shown good cause under Federal Rule of Civil Procedure 16(b) to seek
modification of the scheduling order. Second, the Court weighs whether amendment should be
allowed under Rule 15(a). See Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass’n, 771 F.3d
1230, 1242 (10th Cir. 2014). Rule 16(b) provides that a scheduling order “may be modified only
for good cause and with the judge’s consent.” This standard requires the movant to show that the
scheduling order’s deadlines cannot be met despite the movant’s diligent efforts. The burden
may be satisfied, for example, when the movant learns new information through discovery or if the
underlying law has changed. Gorsuch, 771 F.3d at 1240. Rule 16(b) does not focus on the bad
faith of the movant or prejudice to the opposing party; rather, diligence of the movant is the only
consideration. Colo. Visionary Acad. v. Medronic Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).
In his motion, Mr. Williams asserts that his delay is excusable. Specifically, he argues
that he knew long ago that he wanted to amend his complaint to add SHC, but because he also
suspected that Ms. Rogers’ deposition could lead to testimony confirming that she did not directly
treat Mr. Williams, he waited until after her deposition to combine the two potential amendments
rather than amending once to add SHC and amending again to remove Ms. Rogers. Complicating
this strategy was Ms. Rogers’ repeated delay of her deposition, pushing this motion past the
deadline to amend pleadings.
Mr. Williams has failed to establish good cause here. While the Court understands his
approach and thought process, Mr. Williams nevertheless made a tactical decision to combine
amendments rather than move for them as they became cognizable. At a minimum, he could have
moved the Court to extend the deadline to amend pleadings, explaining the circumstances as he
does in this motion and stating that he awaits Ms. Rogers’ deposition. But he easily could have
moved to timely amend his complaint to add SHC without regard to the removal of Ms. Rogers.
Moreover, Mr. Williams did not even need to amend his complaint to dismiss Ms. Rogers from the
suit — he can accomplish that by filing a notice of voluntary dismissal under Federal Rule of Civil
Procedure 41(a)(1)(i). The Court therefore finds no good cause to support amendment of the
Scheduling Order or amendment of Mr. Williams’ First Amended Complaint. The Court will,
however, construe the motion as a notice of voluntary dismissal under Rule 41. Thus, Mr.
Williams’ claims against Jonathan Hansen, Michael Snell, Jay Rocchi, and Sherry Rogers are
DISMISSED and the motion is DENIED in all other respects.
Dated this 12th day of October, 2017.
BY THE COURT:
Marcia S. Krieger
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?