Faircloth v. Hickenlooper et al

Filing 108

ORDER 91 granted Plaintiff's Motion to Amend, by Magistrate Judge Scott T. Varholak on 3/1/2019. The Clerk of Court is directed to enter Docket No. 91-1 as Plaintiffs Third Amended Prisoner Complaint. Defendants' Motions to Dismiss ( 57 , 67 , and 68 ) are DENIED WITHOUT PREJUDICE as moot. The Status Conference set for 4/8/2019 is VACATED and RESET to 6/24/2019 at 9:30 AM. The Clerk of Court is directed to mail a copy of this Order to Plaintiff. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 18-cv-01249-RM-STV
JAMES ARTHUR FAIRCLOTH,
Plaintiff,
v.
JOHN HICKENLOOPER, et al.,

Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Motion for Leave to File an Amended
Complaint (the “Motion to Amend”) [#91] and three separate motions to dismiss filed by
the defendants who have appeared in this litigation (collectively referred to herein as the
“Motions to Dismiss”) [#57, 67, 68]. All four motions have been referred to this Court.
[#58, 69, 92] This Court has carefully considered the motions, related briefing, the case
file, and the applicable case law, and has determined that neither oral argument nor
further briefing would materially assist in the disposition of the instant motions. 1 For the
following reasons, the Court GRANTS the Motion to Amend and DENIES WITHOUT
PREJUDICE the Motions to Dismiss.

1

Pursuant to D.C.COLO.LCivR 7.1(d), a judicial officer may “rul[e] on a motion at any
time after it is filed.”

I.

BACKGROUND
Plaintiff initiated this action pro se on May 22, 2018, by filing a Prisoner Complaint

asserting claims pursuant to 42 U.S.C. § 1983 against various Colorado officials and
prison officials and medical staff based upon their alleged failure to provide Plaintiff
adequate medical care for Hepatitis C. 2 [#1] Plaintiff filed an amended complaint on June
1, 2018 and, following an order of the Court directing Plaintiff to cure deficiencies, on July
2, 2018, Plaintiff filed the Second Amended Prisoner Complaint, which is the current
operative complaint. [#6, 7, 9] The Second Amended Complaint asserts the following
four claims for relief: (1) deliberate indifference to a serious medical condition in violation
of the Eighth Amendment, (2) supervisory liability for deliberate indifference to a serious
medical condition in violation of the Eighth Amendment, (3) violations of the Eighth and
Fourteenth Amendments based upon defendants presenting Plaintiff with a “Hobson’s
Choice” with regard to medical treatment, and (4) violations of the Americans with
Disabilities Act and the Rehabilitation Act. [#9] On August 2, 2018, Magistrate Judge
Gordon P. Gallagher issued an Order finding that “this case does not appear to be
appropriate for summary dismissal” and drawing the case to a presiding judge. [#10]
On October 11, 2018, Defendant Correctional Health Partners, Inc. (“CHP”) and
Defendant “John or Jane Doe” Director of CHP (collectively, the “CHP Defendants”) filed

2

In November 2016, Plaintiff filed a Section 1983 lawsuit against many of the same
defendants in this Court related to the adequacy of the treatment he received for Hepatitis
C. See Faircloth v. Hickenlooper, No. 16-cv-02929-RM-STV, Dkt. No. 1 (D. Colo. Nov.
30, 2016) (“16-cv-2929 Action”). On February 20, 2018, the Court dismissed that lawsuit
without prejudice for failure to prosecute after Plaintiff absconded from the halfway house
to which he had been released and failed to provide the Court with a valid address or
attend hearings scheduled in the matter. [16-cv-2929 Action, #134, 137] Plaintiff’s motion
to vacate the resulting judgment is currently pending in the 16-cv-2929 Action. [See 16cv-2929 Action, #152]
2

a motion to dismiss all of Plaintiff’s claims asserted against them. [#57] On October 24,
2018, Defendants Louis Cabiling and Judy Brizendine filed a motion to dismiss all of
Plaintiff’s claims asserted against them. 3 [#67] On that same day, Defendants John
Hickenlooper, Rick Raemisch, Susan Tiona, William Frost, Renae Jordan, Helene
Christner, and Robert Magnuson filed a separate motion to dismiss all of Plaintiff’s claims
asserted against them. 4 [#68]
On November 19, 2018, this Court stayed discovery pending resolution of
defendants’ pending motions to dismiss. [#76] On February 4, 2019, Plaintiff filed a
consolidated response to the Motions to Dismiss. [#89] Contemporaneously, Plaintiff
also filed the Motion to Amend. [#91] On February 5, 2019, the Court set an expedited
briefing schedule for the Motion to Amend and “sua sponte extend[ed] the deadline for
Defendants to file replies in support of their pending motions to dismiss until a date to be
reset after briefing on the Motion to Amend is complete.” [#94] On February 19, 2019,
the CHP Defendants and Defendants Cabiling and Brizendine filed separate replies in
support of their motions to dismiss. [#101, 102] On that same date, the CHP Defendants
and Defendants Cabiling and Brizendine filed a joint response in opposition to the Motion
to Amend. [#103] On February 21, 2019, the State Defendants filed their response to
the Motion to Amend, informing the Court that they “do not oppose Plaintiff’s [M]otion to

3

Defendants Cabiling and Brizendine were incorrectly identified in the Second Amended
Prisoner Complaint as “Mr. Cabling” and “Judy Brezindine,” respectively. [#67 at 1 n.1]
The Court uses the correct spelling of their names in this Order.
4 On January 4, 2019, Defendant Brian Hoffman filed a joinder in the motion to dismiss
filed by Defendants Hickenlooper, Raemisch, Tiona, Frost, Jordan, Christner, and
Magnuson. [#81] Defendants Hickenlooper, Raemisch, Tiona, Frost, Jordan, Christner,
Magnuson, and Hoffman are referred to collectively herein as the “State Defendants.”
3

[A]mend and will address any deficiencies through a motion filed pursuant to Fed. R. Civ.
P. 12.” [#105]
II.

ANALYSIS
Through the Motion to Amend, Plaintiff seeks leave to file his proffered Third

Amended Prisoner Complaint (the “Proposed Third Amended Complaint”). 5 [#91, 91-1]
Plaintiff contends that the Proposed Third Amended Complaint is offered “in response to
[the] Motion[s] to Dismiss.” [#91] Specifically, Plaintiff contends that the Proposed Third
Amended Complaint: (1) “incorporate[s] the continued violation doctrine;” (2) revises the
requested damages to reflect “the alleged treatment [Plaintiff] was given from July 11,
2018 – October 2, 2018;” and (3) states Plaintiff’s claims “more precisely[,] staying on
point w[ith] [the] policy of non-medical exclusion criteria being utilized as denial of prompt
treatment of Health Services to the Plaintiff” and “adjust[s]” the request for injunctive relief.
[Id.] The Proposed Third Amended Complaint also would add six additional defendants.
[Compare #9 with #91-1]
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court is to freely allow
amendment of the pleadings “when justice so requires.” The grant or denial of an
opportunity to amend is within the discretion of the 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

5

“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule
applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however,
cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).
4

Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Refusing leave to amend
is generally only justified 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).
As noted above, the State Defendants do not oppose the Motion to Amend but
rather reserve their rights to challenge any deficiencies in the Proposed Third Amended
Complaint through a motion to dismiss. [#105] The CHP Defendants and Defendants
Cabiling and Brizendine (collectively, the “Opposing Defendants”) argue that the Motion
to Amend should be denied because the Motion to Amend and the Proposed Third
Amended Complaint “exhibit undue delay, failure to cure deficiencies by prior
amendment, undue prejudice to the [Opposing Defendants], and futility of amendment.”
[#103 at 5]
The Opposing Defendants devote most of their response to arguing that Plaintiff’s
attempt to amend the operative complaint would be futile. [Id. at 6-10] “An amendment
is futile only if it would not survive a motion to dismiss.” Bituminous Cas. Corp. v. Hartford
Cas. Ins. Co., No. 12-cv-00043-WYD-KLM, 2013 WL 6676157, at *2 (D. Colo. Dec. 18,
2013) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). Here, the
Proposed Third Amended Complaint is offered, in part, as a response to Defendants’
pending Motions to Dismiss and purportedly seeks to clarify Plaintiff’s allegations and
address the Opposing Defendants’ argument in their motions to dismiss that the
continuing violation doctrine does not apply. [#91]

5

To the extent the Opposing Defendants believe the allegations against them
remain deficient, the Court finds that such arguments would be better and more efficiently
addressed through motion(s) to dismiss the Proposed Third Amended Complaint. See
Stender v. Cardwell, No. 07-cv-02503-WJM-MJW, 2011 WL 1235414, at *3 (D. Colo. Apr.
1, 2011); see also Gen. Steel Domestic Sales, LLC v. Steelwise, LLC, No. 07–cv–01145–
DME–KMT, 2008 WL 2520423, at *4 (D. Colo. June 20, 2008) (noting that defendant's
futility argument “seems to place the cart before the horse”). “Accordingly, the Court—
preserving its scarce resources—will not at this time consider the question whether the
amendments should be denied on grounds of futility because they fail to state plausible
claims for relief. The Court will consider that question if and when Defendants file a
motion to dismiss on those grounds.” Stender, 2011 WL 1235414, at *3. The Court finds
this approach particularly valuable in preserving judicial resources here, where only a
subset of the defendants opposes the Motion to Amend on futility grounds and where
Plaintiff also seeks leave to add additional defendants on whose behalf no futility
argument has been offered.
The Opposing Defendants also argue that Plaintiff unduly delayed seeking leave
to file the Proposed Third Amended Complaint. Regarding undue delay, the Opposing
Defendants argue only that Plaintiff has known about the involvement of the Opposing
Defendants in the events giving rise to this case since at least May 20, 2016. [#103 at 8,
9] The analysis of undue delay in the context of a motion for leave to amend, however,
focuses on the delay in the moving party seeking leave to amend—not the delay in
originally

filing

the

lawsuit.

Here,

Plaintiff’s

Motion

to

Amend

was

filed

contemporaneously with his response to the Motions to Dismiss and is sought, in part, to

6

respond to arguments made by Defendants in their Motions to Dismiss. In addition,
Plaintiff seeks leave to amend to account for new facts relevant to his claims that arose
after the filing of the operative complaint—i.e., treatment for Hepatitis C that he received
from July 11, 2018 through October 2, 2018. The Court thus does not find undue delay
in the filing of the Motion to Amend.
The Opposing Defendants further contend that the Motion to Amend should be
dismissed because Plaintiff failed to cure deficiencies by prior amendment.

The

Opposing Defendants, however, fail to offer any argument in support of this contention.
Instead, the Opposing Defendants merely point out that Plaintiff twice amended his
complaint in the 16-cv-2929 Action and has already amended his complaint once in this
action, thus making the Proposed Third Amended Complaint his sixth complaint asserting
claims regarding the treatment of his Hepatitis C. [#103 at 10] The Opposing Defendants,
however, fail to identify how the proposed amendments relate to deficiencies identified in
Plaintiff’s prior complaints. The Court observes that the merits of the motions to dismiss
filed in the 16-cv-2929 Action were never addressed by the Court since the lawsuit was
dismissed for failure to prosecute. [16-cv-2929 Action, #134] Moreover, the statute of
limitations arguments raised in the Opposing Defendants’ motions to dismiss this lawsuit
were not raised in their motions to dismiss the 16-cv-2929 Action. [See 16-cv-2929
Action, #92, 93]
Finally, although the Opposing Defendants contend that the Motion to Amend
should be denied because it would “undu[ly] prejudice” them, they fail to identify any
actual prejudice they would suffer if the Motion to Amend is granted. “Courts typically find
prejudice only when the amendment unfairly affects the defendants ‘in terms of preparing

7

their defense to the amendment.’” Minter v. Prime Equip. Co., 451 F.3d 1196, 1208 (10th
Cir. 2006) (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). “Most often, this
occurs when the amended claims arise out of a subject matter different from what was
set forth in the complaint and raise significant new factual issues.” Id. Here, the Opposing
Defendants concede that the Proposed Third Amended Complaint “seeks to assert the
exact same four claims against the [Opposing Defendants]” that are asserted in the
current operative complaint. [#103 at 3 (emphasis in original)] Although the Opposing
Defendants point out that their motions to dismiss are already fully briefed, given that the
claims asserted against them in the Proposed Third Amended Complaint are identical to
the currently asserted claims, any prejudice to the Opposing Defendants is slight because
they will be able to file substantially similar briefing in response to the Proposed Third
Amended Complaint. 6
For these reasons, Plaintiff’s Motion to Amend is GRANTED and the Clerk of Court
is directed to enter Docket No. 91-1 as Plaintiff’s Third Amended Prisoner Complaint. The
filing of the Third Amended Prisoner Complaint moots the Motions to Dismiss.
Accordingly, the Motions to Dismiss [#57, 67, 68] are DENIED WITHOUT PREJUDICE,
and Defendants may file renewed motions to dismiss the Third Amended Prisoner
Complaint.

6

The Court further notes that the Opposing Defendants voluntarily chose to complete the
briefing on their pending motions to dismiss prior to the resolution of the Motion to Amend.
In an effort to preserve the parties’ resources, on February 5, 2019, the day after Plaintiff
filed his response to the Motions to Dismiss, the Court sua sponte extended the deadline
for Defendants to file their replies in support of their Motions to Dismiss until a date to be
reset after the briefing on the Motion to Amend was complete. [#94]
8

In an attempt to preserve the resources of the Court and avoid unnecessary delay,
on or before March 13, 2019, counsel for Defendants shall notify the Court whether they
will accept service of the Third Amended Prisoner Complaint on behalf of any of the
following Defendants who have not yet been served in this matter: (1) Gisela Walker, (2)
Mark Wienpahl, (3) the John Doe Assistant Director of Clinical Services for the Colorado
Department of Corrections (“CDOC”), (4) the John Doe Chief Medical Doctor or Officer
for CDOC, (5) John Suthers, (6) Ari Zavaris, (7) Mr. Lawrence, and (8) Ms. Boyd. To the
extent defense counsel refuses to accept service on behalf of any of these individuals
because the individual is no longer employed by CHP or CDOC, the Court requests that
counsel file under restriction the last known contact information available to CHP/CDOC
for those defendant(s). The Court will then issue an order directing the United States
Marshals Service to effect service on the defendants for whom service is not accepted. 7
To facilitate the filing of consolidated responses to the Third Amended Prisoner
Complaint, the deadline for Defendants to respond to the Third Amended Prisoner

7

The Marshals Service already has attempted service on Defendants Walker and
Weinpahl at the addresses provided in the Third Amended Prisoner Complaint [#91-1],
but was unable to effect service upon those defendants at those addresses [#16, 27]. On
January 7, 2019, the Court ordered Plaintiff to provide valid addresses for service upon
Defendants Walker and Weinpahl by January 28, 2019. [#83] On January 30, 2019,
Plaintiff filed a response in which he provided a new address for service upon Defendant
Walker but was unable to identify a new address for service upon Defendant Weinpahl.
[#84] Plaintiff is reminded that “[i]t is the plaintiff's responsibility to provide the [Court] with
the address of the person to be served,” Fields v. Okla. State Penitentiary, 511 F.3d 1109,
1113 (10th Cir. 2007), and failure to timely do so will result in the dismissal of the claims
against the defendant who was unable to be served. [See #83] Plaintiff is cautioned that,
to the extent counsel for Defendants are unable to accept service on behalf of Defendant
Weinpahl or provide an updated address for him, the Court will not direct the Marshals
Service to make further attempts to serve him at the address provided in the Third
Amended Prisoner Complaint, and Plaintiff’s claims against Defendant Weinpahl may be
dismissed.
9

Complaint is extended until April 15, 2019. The stay of discovery shall remain in place
until any motions to dismiss the Third Amended Prisoner Complaint have been resolved.
III.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1)

Plaintiff’s Motion to Amend [#91] is GRANTED and the Clerk of Court is
directed to enter Docket No. 91-1 as Plaintiff’s Third Amended Prisoner
Complaint;

(2)

Defendants’ Motions to Dismiss [#57, 67, 68] are DENIED WITHOUT
PREJUDICE as moot;

(3)

on or before March 13, 2019, counsel for Defendants shall notify the Court
whether they will accept service of the Third Amended Prisoner Complaint
on behalf of any of the following Defendants: (1) Gisela Walker, (2) Mark
Wienpahl, (3) the John Doe Assistant Director of Clinical Services for
CDOC, (4) the John Doe Chief Medical Doctor or Officer for CDOC, (5) John
Suthers, (6) Ari Zavaris, (7) Mr. Lawrence, and (8) Ms. Boyd, and, to the
extent service is not accepted because the individual is no longer employed
by CHP or CDOC, counsel is requested to file under restriction the last
known contact information for those defendant(s);

(4)

the deadline for Defendants to respond to the Third Amended Prisoner
Complaint is extended until April 15, 2019;

(5)

discovery shall remain STAYED pending resolution of any motion to dismiss
the Third Amended Prisoner Complaint;

10

(6)

the Status Conference set for April 8, 2019 at 9:30 AM is VACATED and
RESET for June 24, 2019 at 9:30 AM and Plaintiff may participate in the
Status Conference by calling the Court at 303.335.2365 at the scheduled
time; and

(7)

the Clerk of Court is directed to mail a copy of this Order to Plaintiff.

DATED: March 1, 2019

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

11