Romero v. Reams et al
ORDER ON PLAINTIFF'S MOTION TO AMEND COMPLAINT AND CASE CAPTION (DKT. 116 ) by Magistrate Judge N. Reid Neureiter on 13 October 2020. Having read the Parties' submissions, considered the arguments asserted at oral argument, and having taken into account relevant law, it is ORDERED that Plaintiff's Motion is GRANTED.(cmadr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-02575-RM-NRN
SHERIFF STEVE REAMS,
DR OR NP TRAVIS,
DR OR NP KLAUS, and
PLAINTIFF’S MOTION TO AMEND COMPLAINT AND CASE CAPTION (DKT. 116)
N. REID NEUREITER
United States Magistrate Judge
This matter comes before the Court on Plaintiff’s Motion to File a Third Amended
Complaint, filed July 7, 2020. See Dkt. #116. Plaintiff originally attached a proposed
Third Amended Complaint to the Motion. See Dkt. #116-1. Later, on August 11, 2020,
Plaintiff submitted an “updated” proposed Third Amended Complaint. See Dkt. #131-1.
Defendant Sgt. Todd opposed the motion to amend. See Dkt. #123. Defendant N.P.
Travis Polk also opposed Plaintiff’s Motion. See Dkt. #127. Plaintiff filed a Reply in
Support, which included an “updated” proposed Third Amended Complaint. See Dkt.
#131. On August 21, 2020, Defendant Todd filed a Surreply opposing amendment. See
Dkt. #135. I heard argument on the Motion on August 28, 2020 and took the matter
under advisement. See Dkt. #136. Having read the Parties’ submissions, considered the
arguments asserted at oral argument, and having taken into account relevant law, it is
ORDERED that Plaintiff’s Motion is GRANTED.
This case was filed by the Plaintiff Phillip Romero on October 9, 2018. We are
thus passing the two-year mark on this litigation. Mr. Romero generally alleges that,
while detained in the Weld County Jail, he had his cane confiscated. At one point, he
had a walker, which was also taken away. Mr. Romero says that a mobility assistance
device, such as a cane or a walker, is medically necessary because he suffers from
various conditions, including a serious leg injury from a gunshot wound. While he
sometimes can walk without the cane, he occasionally becomes dizzy and the cane
allows him to avoid the risk of falling. Mr. Romero says a cane, walker, or other mobility
device is medically necessary, but it was taken away by prison officials without following
the recommendations of medical personnel, and medical personnel reflexively followed
the orders of jail staff. Prior to his cane being confiscated, Mr. Romero says he has
been issued a cane (or some other mobility device) for medical reasons both at the
Colorado Department of Corrections (“CDOC”) or the Weld County Jail since at least
2016. Mr. Romero tried to get a cane or other assistive device prescribed by his medical
providers, but those directives were overridden by non-medical jail personnel. Medical
providers claimed to Mr. Romero that their hands were tied by the directives from jail
personnel. Denial of an assistive device allegedly exacerbated Mr. Romero’s symptoms
and caused him additional pain. Mr. Romero exhausted his administrative remedies in
asking that his cane or walker be returned.
Mr. Romero, proceeding pro se, filed his original complaint on October 9, 2018.
After being ordered to cure specific deficiencies, Mr. Romero, still pro se, filed an
Amended Complaint. See Dkt. #4. On December 3, 2018, he was directed to file an
additional amended complaint, an order that was reaffirmed on February 15, 2019. See
Dkt. #12 & #20. Mr. Romero filed his Second Amended Complaint on March 4, 2019.
See Dkt. #22. Mr. Romero’s March 4, 2019 Second Amended Complaint leveled claims
against Sheriff Steve Reams, Doctor or Nurse Practitioners Travis and Klaus, and Sgt.
Todd. Defendants moved to dismiss in whole or in part Mr. Romero’s Amended
I issued a recommendation on September 16, 2019 that Dr. Klaus’s and Mr.
Polk’s motions to dismiss (Dkt. #51 & #55) be denied; that Sgt. Todd’s motion to dismiss
(Dkt. #54) be granted; that Mr. Romero’s intentional infliction of emotional distress claim
be dismissed only as to Sgt. Todd and not Dr. Klaus and Mr. Polk; and his claim for
deliberate indifference to serious medical needs proceed against all Defendants. See
Dkt. #75. Defendants Klaus and Travis filed objections to the recommendation. See
Dkts. #76 and #77. On March 9, 2020, Judge Moore overruled the objections and
adopted and accepted the recommendation. Dkt. #106.
I had previously granted Mr. Romero’s request for appointment of pro bono
counsel. I had ordered that pursuant to D.C.COLO.LAttyR 15(f)(2), the Clerk should
select, notify, and appoint counsel from the Pro Bono Panel to represent the
unrepresented party in this civil matter. See Dkt. #84. On January 2, 2020, counsel from
the firm of Dormer Harpring, LLC entered a formal appearance on behalf of Mr.
Romero. See Dkt. #91. I held a Status Conference on January 14, 2020 amending the
Scheduling Order and setting deadlines for discovery and dispositive motions. See Dkt.
As noted, Judge Moore overruled the objections and denied in part the motions
to dismiss on March 9, 2020, and the Parties attempted to conduct discovery relating to
extant claims in the case.
On April 10, 2020, I granted the first of Plaintiff’s several unopposed motions
extending the deadlines for discovery, expert reports, and dispositive motions. Reasons
cited for the extension included complications raised by the COVID-19 pandemic,
difficulty scheduling depositions, and difficulty obtaining Mr. Romero’s medical records.
See Dkt. #112.
On July 7, 2020, after conducting some discovery during a pandemic-afflicted
spring and early summer, Plaintiff, now assisted by appointed counsel, filed his motion
to amend. Dkt. #116.
On August 6, 2020, I granted Plaintiff’s Third Unopposed Motion to Extend
Discovery and Dispositive Motion Deadlines (Dkt. #128), extending the date for
dispositive motions to December 10, 2020. See Dkt. #130. The pandemic was again a
principal reason for the extension, with medical professionals being particularly hard hit
with work from the pandemic and the pandemic causing delays in scheduling Mr.
Romero’s deposition through the CDOC. On September 28, 2020, I granted another
extension of discovery and dispositive motion deadlines. See Dkt. #139.
Plaintiff’s “Updated” Amended Complaint
Plaintiff’s proposed “Updated” Third Amended Complaint includes new claims
and new defendants. The proposed Third Amended Complaint names as new
defendants the Weld County Sheriff’s Office (“WCSO”); the Weld County Jail medical
provider; Armor Correctional Health Services, Inc. (“Armor”); Dustin Owens, RN; Katie
Giroux, RN; and Deputy Z. Poulsen. New claims are added against existing Defendant
Sgt. Todd, Dr. Klaus, and Travis Polk, NP. The WCSO and Defendants Todd and
Poulsen will be referred to collectively as the “WCSO Defendants,” while Armor and its
medical provider employees will be referred to collectively as the “Armor Defendants.”
The proposed Third Amended Complaint include the following claims:
1. An Americans with Disabilities Act (“ADA”) claim under 42 U.S.C. § 12101
against the WCSO Defendants and Armor.
2. A Rehabilitation Act claim for disability discrimination under 29 U.S.C. §
794(a) against the WCSO Defendants and Armor.
3. A claim under the Fourteen Amendment for deliberate indifference to serious
medical needs under 42 U.S.C. § 1983 against all Defendants.
4. A claim under Colo. Rev. Stat. § 13-21-131 under Art. II, Sections 20 and 25
of the Colorado Constitution for deliberate indifference to serious medical
needs against Defendants Todd and Poulsen.
The Second Amended Complaint had alleged only a § 1983 claim of deliberate
indifference to medical needs and intentional infliction of emotional distress. Neither the
Second Amended Complaint nor either prior complaints alleged any violation of the
ADA or the Rehabilitation Act, any theory of liability against the WCSO or Armor, nor
any claim under Colo. Rev. Stat. § 13-21-131 (civil action for deprivation of rights).
Standard for Allowing Amendment under Rule 15(a)(2)
Where a plaintiff seeks to amend after the deadline for amending the pleadings
under the Scheduling Order has passed, the Court employs a two-step analysis to
determine whether leave to amend is warranted. Greenway Nutrients, Inc. v. Blackburn,
33 F. Supp. 3d 1224, 1236 (D. Colo. 2014). First, the Court examines whether “good
cause” has been shown for modifying the Scheduling Order under Rule 16(b), then the
Court must evaluate whether the plaintiff has satisfied the standard for amendment of
pleadings under Rule 15(a).
To demonstrate “good cause” for modifying a Scheduling Order under Rule
16(b), the movant must show that the scheduling deadlines could not be met despite a
party’s diligent efforts. This requires examination of whether the movant could have
amended its pleadings prior to the deadline. The movant must provide an adequate
explanation for any delay in meeting the deadline. See Minter v. Prime Equip. Co., 451
F.3d 1196, 1205 n. 4 (10th Cir.2006). If the Court determines that the showing under
Rule 16(b) has been made, then the Court proceeds to examine whether leave should
be granted under Rule 15(a).
Under Rule 15(a), the Court should grant leave to amend “freely . . . when justice
so requires.” The grant or denial of an opportunity to amend is within the discretion of
the Court, but “[r]efusing to 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). A critical factor is determining
whether to grant a motion to amend is the extent to which the amendment will unfairly
prejudice the nonmoving party. Unfair prejudice may occur “where the amended claims
raise significant new factual issues.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1208
(10th Cir. 2006). But the raising of new factual issues must adversely affect the
defendant in terms of preparing a defense to the amendment. Id. It is when the
defendant is prejudiced from maintaining his defense on the merits that the prejudice is
considered undue. Id. See also, id. at 1209 (explaining that “an amendment may be
prejudicial if its timing prevents the defendant from pursuing a potentially promising line
of defense”); Evans v. McDonald’s Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991) (“As
a general rule, a plaintiff should not be prevented from pursuing a valid claim . . .,
provided always that a late shift in the thrust of the case will not prejudice the other
party in maintaining his defense upon the merits.”).
The Court cannot turn a blind eye to two realities about this case. First, although
the case was filed nearly two years ago, Plaintiff was without the assistance of counsel
until January 2020, when counsel was appointed under the Court’s pro bono
representation program. Second, through the spring and summer of 2020, the COVID19 pandemic has affected nearly all aspects of American life and work, including the
practice of law. My willingness to grant repeated (unopposed) extensions of various
deadlines in the Scheduling Order reflect in part the practical litigation difficulties posed
by the pandemic.
The appointment of pro bono counsel is significant because, while the Plaintiff
was able to survive motions to dismiss without the assistance of counsel, once pro bono
counsel is appointed from the Court’s pro bono panel, it is generally expected that the
involvement of a person trained in the law on behalf of a previously unrepresented party
will result in additional investigation into the underlying facts of the case and potential
additional causes of action. It is almost expected that an amended complaint will be filed
that provides more factual detail and legal clarity than a pro se plaintiff could be
expected to provide. Once a case gets past the motion to dismiss stage, having
qualified counsel involved in a case first started by a pro se litigant is of benefit not just
to the pro se litigant, but also the Court and opposing counsel. Here, counsel accepted
the appointment in early January 2020 and was involved in discovery and procurement
of medical records during a spring and summer affected by the pandemic.
Defendants argue in part that Plaintiff should have been aware of some these
claims and new defendants earlier. But counsel for Sgt. Todd concedes that he had not
produced documents in connection with initial Rule 26(a) disclosures because the Rule
26(a)(1)(B)(iv) did not require it (given that Plaintiff was a person in custody), but also
because “Plaintiff likely could not have received the nearly two-thousand pages of
disclosed materials while incarcerated.” Dkt. #135 at 3. It is difficult to say that a pro se
plaintiff unduly delayed in identifying certain claims or potential defendants earlier in the
litigation where the normal process of exchanging information was delayed because of
his pro se status and the impact of the pandemic. The delay here is explainable and,
under these circumstances, I do not find that Plaintiff (or his counsel) unduly delayed in
seeking leave to amend until July 2020.
The second question is whether Defendants will be unduly prejudiced by the
proposed amendments here. Obviously, allowing more or different claims in a case
prejudices Defendants to some degree. They will have to address the new claims and
the statutes relevant to those claims. The question is whether it is undue or unfair
prejudice. The cases teach that for prejudice to be undue, the defendants must be
hindered or handicapped in defending the case on the merits. “Courts typically find
prejudice only when the amendment unfairly affects the defendants ‘in terms of
preparing their defense to the amendment’.” Minter, 451 F.3d at 1208 (quoting Patton v.
Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). In Minter, the trial court had refused to allow
the plaintiff to amend the pretrial order three weeks before trial to add a product liability
claim for negligent alteration of a product. The Minter dispute had been pending for
years. Nevertheless, the Tenth Circuit found that there was a rational explanation for the
plaintiff’s delay in seeking to amend, and further found that allowing amendment would
not have unduly prejudiced the defendant in pursuing a promising line of defense. The
refusal to allow amendment based on alleged undue prejudice to the defendant was
found to be clear error. Id. at 1211 (noting that the Federal Rules “accept the principle
that the purpose of pleading is to facilitate a proper decision on the merits”) (citation
omitted). As Minter makes clear, there is little undue prejudice where the amended
claims arise out of the same subject matter as the prior complaint. See id. at 1208
(undue prejudice most often occurs “when the amended claims arise out of a subject
matter different from what was set forth in the complaint and raise significant new
Here, the proposed new claims arise out of the same subject matter as the
original complaint. Mr. Romero had his cane and walker taken away, allegedly contrary
to his diagnosed medical needs. Whether this constitutes a constitutional violation
because of alleged deliberate indifference to his medical needs, or whether it also
constitutes violations of statutes intended to end discrimination against persons with
disabilities, the underlying facts of what happened, and why (whether these were
individual decisions or part of an overarching policy) are essentially unchanged. In
addition, we are far from trial in this case, and Defendants will not be meaningfully
prejudiced in their ability to defend against these new claims based on an approaching
trial date. No trial date has yet been set.
The Armor Defendants protest that by adding ADA and Rehabilitation Act claims
and Monell claims against Armor, they will be unfairly prejudiced in part because the
new claims raise “a host of significant and separate issues.” Dkt. #127 at 4. The Armor
Defendants emphasize that to prevail on an ADA or Rehabilitation Act claim, a plaintiff
must allege that he is (1) a qualified individual with a disability, (2) who was excluded
from participation in or denied the benefits of a public entity’s services, programs, or
activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of
a disability. The Armor Defendants insist that “[n]one of these elements overlap with an
element of Plaintiff’s existing §1983 [claim] against Mr. Polk [and] allowing Plaintiff to
add ADA and Rehabilition Act claims at this advanced stage of litigation would
fundamentally alter the nature of the litigation. . ..” Id. The Weld County Defendants
make the same arguments. See Dkt. #123 at 5. See also Dkt. #123 at 6–7 (protesting
that allowing Monell claims against the Weld County Sheriff’s Office would raise
significant and discovery-intensive factual issues that up to now have not existed in the
case, including the nature of WCSO’s policies and training and how those were created
by decisionmakers, and whether Plaintiff was denied access to programs and services
WCSO offers disabled inmates).
I disagree. First, as noted, the underlying facts and issues—the removal of the
cane, whether its removal was justified, the refusal to return the cane or some other
assistive device, and its impact on Mr. Romero—do not change with the addition of
claims under the ADA, the Rehabilitation Act, or even under Monell. There may be a
need for some additional discovery on the elements listed above. To the extent
additional discovery is needed (especially for the Defendants as they seek to bolster
their defenses to the new claims), it can be addressed via modifications to the
Scheduling Order. The reality is that, fundamentally, the underlying transaction or
occurrence that spawned the litigation—the alleged confiscation of the cane against
medical advice—remains the same. Therefore, with appropriate modifications to the
Scheduling Order, I find that Defendants will not be unduly prejudiced by the allowance
of the proposed amendments.
Both sets of Defendants argue against allowing amendment on the basis of
futility. And it is certainly true that a court “is not required to grant leave to amend . . . if
amendment would be futile.” Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521
F.3d 1178, 1188 (10th Cir. 2008). If the amended complaint would be subject to
dismissal for failure to state a claim, it is futile. Id.
But the briefing on the issue of futility with respect to the amended claims
purports to address multiple complex issues, including (1) necessary non-conclusory
elements of claims under the ADA, the Rehabilitation Act, and municipal liability under §
1983; (2) the exercise of supplemental jurisdiction over a novel state law claim,
including its retroactive effect; and (3) the application of the statute of limitations and
whether the denial of an assistive device constitutes an ongoing tort so as to toll the
statute of limitations. This briefing has necessarily been abbreviated because so much
of the argument has been devoted to questions of undue delay and prejudice.
Where the proposed amendment is not patently futile on its face, I am inclined to
follow the principle articulated by Judge Ebel, who noted of a defendant’s extensive
futility argument raised in opposing amendment: the “futility argument seems to place
the cart before the horse. Rather than force a Rule 12(b)(6) motion into a Rule 15(a)
opposition brief, the defendants may be better served by waiting to assert Rule 12
motions until the operative complaint is in place.” Gen. Steel Domestic Sales, LLC v.
Steelwise, LLC, Civ. No. 07-cv-01145, 2008 WL 2520423, at *4 (D. Colo. June 20,
2008). See also Agere Sys. Guardian Corp. v. Proxim, Inc., 190 F. Supp. 2d. 726 (D.
Del. 2002) (“[T]his court hesitates to undergo a rigorous 12(b)(6) analysis of the claims
alleged to be futile based on less than complete briefing, especially in light of the
deferential standard under which the court must consider 12(b)(6) motions. The court
believes the better course is to liberally allow amendments that state a colorable claim
and defer judgment as to whether they survive a motion to dismiss for failure to state a
claim until such time when that motion is raised.”).
Based on the foregoing, I will allow Plaintiff to file a Third Amended Complaint.
Plaintiff is ordered to file a clean version of the Third Amended Complaint within three
days from the date of this Order and promptly serve the new defendants in the case.
Once Plaintiff’s counsel learns who will be representing the new defendants, the Parties
shall promptly contact the Court’s chambers to schedule a telephonic status conference
to address the schedule of the case going forward.
October 13, 2020
N. Reid. Neureiter
United States Magistrate Judge
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