Vaneck v. Core Civic of America et al

Filing 55

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kathryn A. Starnella on 6 March 2025. IT IS HEREBY RECOMMENDED that Plaintiff's Motion for Leave to File Amended Complaint 43 be DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Extension of Time 46 is DENIED AS MOOT. (cmadr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03009-SKC-KAS
JOSEPH VANECK,
Plaintiff,
v.
CORE CIVIC OF AMERICA,
TEJINDER SINGH, and
LILLIAN YUTTERMAN,
Defendants.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Motion for Leave to File an Amended
Complaint [#43] (the “Motion for Leave”) and on Plaintiff’s Motion for Extension of Time
[#46] (the “Motion for Extension of Time”) (together, the “Motions”). Defendants filed a
Response [#49] in opposition to the Motion for Leave [#43], and Plaintiff, who proceeds
in this matter pro se, 1 filed a Reply [#50] which he titled “The Plaintiff’s Rebuttle [sic] to
the Defendant’s Response to His Motion for Leave to File an Amended Complaint”. No
responses were filed to the Motion for Extension of Time [#46] and the time to do so has
elapsed. Both Motions [#43, #46] have been referred to the undersigned. See
Memoranda [#44, #47]. The Court has reviewed the briefing, the entire case file, and the

The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor “supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a
[litigant’s] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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applicable law. For the following reasons, the Court RECOMMENDS 2 that the Motion for
Leave [#43] be DENIED. The Motion for Extension of Time [#46] is DENIED AS MOOT.
I. Background
A.

The Second Amended Complaint [#9]
Plaintiff is a convicted and sentenced state prisoner who has, at all relevant times,

been held at the Crowley County Correctional Facility (CCCF), which is run by Defendant
Core Civic of America (“CoreCivic”), pursuant to a contract with the Colorado Department
of Corrections (CDOC). See Am. Compl. [#9] at 2-3. Defendant Tejinder Singh is a
physician assistant who works at CCCF. Id. at 3. Defendant Lillian Yutterman is CCCF’s
current Health Services Administrator (“HSA”), who was substituted in place of the former
HSA, Christianna Cappellucci (“Ms. Cappellucci”) pursuant to Fed. R. Civ. P. 25(d) after
Ms. Cappellucci’s death. See Substitution of Party Defendant [#35] at 1; Minute Order
[#40] at 2 (directing that Ms. Cappellucci be removed from the docket). 3
In Plaintiff’s Second Amended Complaint [#9], filed on December 14, 2023, he
alleges that Defendants failed to follow his surgeon’s treatment plan after he underwent
reconstructive surgery on his left leg. See Am. Compl. [#9] at 4-5. In particular, he alleges
that on July 28, 2023, Defendant Singh “went against the treatment plans prescribed by
both Dr. Cabiling and Dr. Hanson and took the Plaintiff’s wheelchair despite the Doctors

While motions to amend are generally considered non-dispositive, when denying amendment
would effectively remove a defense or claim from the case, it may be dispositive. See, e.g., Mason
v. Fantasy, LLC, No. 13-cv-02020-RM-KLM, 2015 WL 429963, at *1 n.2 (D. Colo. Jan. 30, 2015);
Cuenca v. Univ. of Kan., 205 F. Supp. 2d 1226, 1228 (D. Kan. 2002). The Court will therefore
proceed by Recommendation rather than Order.

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Although Plaintiff initially stated both individual and official capacity claims against Ms.
Cappellucci, see Am. Compl. [#9] at 3, he voluntarily dismissed his individual capacity claims
against her at the Scheduling Conference. See Courtroom Minutes [#30] at 1.
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[sic] treatment orders and the Plaintiff not being physically ready, forcing him to now move
about the whole facility with a walker.” Id. at 4. Later that day, Plaintiff’s legs gave out and
he fell to the floor, so he was sent back to medical where Defendant Singh and other
CoreCivic personnel allegedly “ridiculed, degraded, and made fun of [him].” Id. at 5.
Plaintiff went back to medical later that day because his hands were bleeding from using
the walker, but CoreCivic personnel allegedly threatened to “lock [him] in a medical cell
until [he] [could] walk on [his] own again,” if he came back or tried to get his wheelchair
back. Id.
The next morning, when they saw Plaintiff struggling to walk, two correctional
officers “took it upon themselves to go to unit 6 and retrieve a wheelchair that had been
sitting in a closet for several months unused” and brought it to Plaintiff. Id. However, when
“medical and shift command heard about this” they ordered the wheelchair taken away
again. Id. Ms. Cappellucci allegedly “followed suit[] with the rest of the medical staff in
going against the Doctor’s orders and kept the wheelchair from being returned to the
Plaintiff[.]” Id. Based on these allegations, Plaintiff lodged an Eighth Amendment
deliberate indifference claim against Defendants. Id. at 6.
B.

Proposed New Allegations
Plaintiff now seeks to amend his complaint to add claims against “Registered

Nurse, Heather Trujillo for the violations of his Eighth Amendment Constitutional right
against cruel and unusual punishment, CDOC standards/policies Administrative
Regulation 700-02 Medical Scope of Service, witness tampering, and fraud.” Motion for
Leave [#43] at 2. He identifies three incidents involving Nurse Trujillo.

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First, on September 26, 2023, Plaintiff was informed that his medications had been
changed to the morning “med line” but the next day, when he arrived, they were not there.
Id. at 2-3. He went to medical, but Nurse Trujillo refused to give him his medications. Id.
at 3. Plaintiff explained that he had been instructed to go to medical and that his
medication distribution had been moved to mornings, but she still refused to give him his
medications, which included blood thinners for a clot issue and pain medications for his
leg. Id. Nurse Trujillo allegedly told Plaintiff “Go to [the] evening med line if you want
them.” Id. Plaintiff alleges that the evening med line has a longer wait time, he could not
stand that long, and the morning line was “shorter and safer for him.” Id. After leaving
medical, Plaintiff saw a different nurse and sought “clarification from her on what to do
and what was going on.” Id. Nurse Trujillo became upset, leaving her post and “yelling at
Mr. Van Eck, ‘Your [sic] not gonna have her over ride [sic] me.’” Id. The other nurse told
Nurse Trujillo to “[j]ust give him his meds,” but Nurse Trujillo refused and closed the door
in Plaintiff’s face. Id. Plaintiff grieved this incident, filing a Step 3 grievance on November
18, 2023. See id. at 10-17 (attached grievances).
Second, on March 13, 2024, around 7:30 a.m., Plaintiff went to medical because
he had been scheduled for both an 8:00 a.m. physical therapy appointment and an 8:00
a.m. legal appointment. Id. at 4. Nurse Trujillo would not let Plaintiff do his physical
therapy early, allegedly telling him, “You’re either here at 8:00 a.m. for physical therapy
or your [sic] not. Your name will no longer be on the appointment list. You will not be
accommodated. This is coming straight from Christianna Cappellucci the HSA!” Id.
Plaintiff believes that this statement was “retaliation” and “witness tampering” because he
had named Ms. Cappellucci in this lawsuit. Id. Plaintiff argues that “[i]t is improper and

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unethical to make an inmate cho[o]se between his need[ed] medical care and legal
access.” Id. Plaintiff submitted an Incident Report on March 20, 2024, and an Offender
Request for Accommodations on March 22, 2024. Id. He requested that his physical
therapy be changed to a different time to accommodate his legal mail and legal
appointments, but his request was ignored. Id. at 5, 18-19 (attached incident report and
request for accommodation).
Third, on October 5, 2024, Nurse Trujillo attempted to make Plaintiff sign a “no
show notification” for another physical therapy appointment when “Plaintiff had a
conflicting appointment[] that morning. One at medical and the other a legal appointment
to mail out legal mail.” Id. at 5. Ms. Trujillo allegedly “filled out the refusal form in her
misleading representation” and “failed to depict the factual base that Plaintiff was not
refusing the medical appointment but simply trying to reschedule it due to the conflict in
scheduling[.]” Id.; but see id. at 29 (No-Show Notification form that “offender refused to
sign,” explaining that “offender states mail appointment takes precedence”). Plaintiff
completed another Incident Report and grieved this incident as well. Id. at 6, 20-28
(attached incident report and grievances).
II. Legal Standard
Federal Rule of Civil Procedure 15(a)(2) states that “[t]he court should freely give
leave [to amend] when justice so requires.” “[T]his mandate is to be heeded.” Foman v.
Davis, 371 U.S. 178, 182 (1962). In other words, “[i]f the underlying facts or circumstances
relied upon by a [litigant] may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits.” Id. This is consistent with Rule 15’s purpose,
which is “to provide the maximum opportunity for each claim to be decided on its merits

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rather than on procedural niceties.” Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449,
456 (10th Cir. 1982). Whether to grant or deny leave to amend a complaint is within a
court's discretion. Foman, 371 U.S. at 182. Refusing leave to amend is generally justified
only on “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). However,
“[a] court properly may deny a motion for leave to amend as futile when the proposed
amended complaint would be subject to dismissal for any reason[.]” Bauchman ex rel.
Bauchman v. W. High Sch., 132 F.3d 542, 562 (10th Cir. 1997).
III. Analysis
Defendants ask the Court to deny Plaintiff’s motion for leave to amend because
(1) it is untimely without adequate excuse; (2) it is unrelated to and therefore does not
relate back to the Amended Complaint [#9]; and (3) Plaintiff’s proposed claims against
Nurse Trujillo would be futile because they fail to state an Eighth Amendment claim. See
Response [#40] at 1-7.
As discussed below, the Court recommends denying amendment because (1)
joinder of these unrelated claims would be improper; and (2) amendment would be futile
due to Plaintiff’s failure to exhaust administrative remedies as to Nurse Trujillo prior to this
lawsuit’s commencement. Therefore, the Court declines to address the timeliness of
Plaintiff’s proposed amendment or the plausibility of his allegations.
A.

Relation Back and Joinder
Defendants argue that “Plaintiff’s allegations against a new defendant and a new

claim fail to relate back to the facts or legal theories relied upon in his operative complaint”

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because “no relationship [exists] between the defendants in the original and operative
complaints and the new allegations and new defendant[] sought to be brought in[.]”
Response [#49] at 3, 4. The Court agrees. Because Plaintiff’s claims against Nurse
Trujillo do not appear to be time-barred, the Court will conduct its analysis in terms of
Rule 20(a)(2) of the Federal Rules of Civil Procedure and joinder rather than Rule 15(c)
and relation back. Cf. 6A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1497 (3d ed. June 2024 update) (“Rule 15(c) provides two methods by

which an amendment alleging a new or different claim or defense may be allowed to relate
back to the filing of the original complaint and thus avoid an otherwise applicable statute
of limitations.”).
Under Fed. R. Civ. P. 20(a)(2), multiple defendants may be joined in one action if
“(A) any right to relief is asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will arise in
the action.” Thus, “[w]hile joinder is encouraged for purposes of judicial economy, the
‘Federal Rules do not contemplate joinder of different actions against different parties
which present entirely different factual and legal issues.’” Waterman v. Bell, No. 24-3220JWL, 2025 WL 35013, at *1 (D. Kan. Jan. 6, 2025) (quoting Zhu v. Countrywide Realty
Co., Inc., 160 F. Supp. 2d 1210, 1225 (D. Kan. 2001)).
A district court properly may deny a motion to amend on the basis of misjoinder
where “the amended complaint combines ‘separate and unrelated claims’—many of them
arising out of different alleged incidents—against multiple defendants.” Gillon v. Fed.
Bureau of Prisons, 424 F. App’x 722, 725-26 (10th Cir. 2011) (quotation marks in original)

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(affirming district court’s denial of joinder); see also David v. Crow, No. CIV-21-534-SLP,
2022 WL 22863227, at *2 (W.D. Okla. Aug. 30, 2022) (sua sponte considering misjoinder
and recommending denying the plaintiff’s attempt to assert new claims that “would
inevitably add new defendants not shown to be connected to his initial claims by a
common occurrence or question of fact or law”), report and recommendation adopted,
2024 WL 3470645 (July 19, 2024), appeal filed, No. 24-6167 (10th Cir. Aug. 13, 2024);
Hatten v. Freeborn, No. 09-cv-02729-CMA-MJW, 2010 WL 1677772, at *2 (D. Colo. Apr.
26, 2010) (adopting magistrate judge’s recommendation to deny leave to supplement
pleading where “[the] new claim—while also in part concerning [the p]laintiff’s medical
care—bears no relationship to the medical claims alleged in the operative pleading”).
Here, Plaintiff’s proposed claims against Nurse Trujillo are completely
disconnected from his initial claims against Defendants CoreCivic, Singh, and Yutterman.
His initial claims were narrowly focused on Defendants denying him use of a wheelchair
and forcing him to use a walker against his surgeon’s orders. See Am. Compl. [#9] at 46. The alleged incidents took place over just two days, from July 28, 2023, to July 29,
2023. Id. at 4-5. By contrast, Plaintiff’s proposed allegations involve three unrelated
interactions with Nurse Trujillo over a roughly one-year period (from September 26, 2023
to October 5, 2024). See Motion for Leave [#43] at 2-6. None of these interactions
involved the use of a walker or wheelchair: one incident involved distribution of
medications and the other two incidents involved Plaintiff being scheduled for physical
therapy and legal appointments at the same time. Id. As Defendants argue, “there exists
no logical relationship between the conduct of the current defendants and the conduct

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alleged in the request to amend.” Response [#49] at 4; see also Hatten, 2010 WL
1677772, at *2.
The Court finds that allowing Plaintiff to amend his complaint to allege these new
claims against a new defendant would violate Fed. R. Civ. P. 20(a)(2). Therefore, the
Court recommends that the Motion for Leave [#43] be denied.
B.

Futility and Failure to Exhaust
Defendants also argue that amendment should be denied as futile because

Plaintiff has not plausibly stated an Eighth Amendment deliberate indifference claim as to
Defendant Trujillo. However, the Court cannot and need not reach the merits of Plaintiff’s
proposed new claims because they are futile for another reason: they would be subject
to dismissal for failure to exhaust administrative remedies before filing suit.
1.

The PLRA Exhaustion Requirement

The PLRA requires a prisoner to exhaust any available administrative remedies
before he can challenge prison conditions in federal court. Woodford v. Ngo, 548 U.S. 81,
85 (2006). This exhaustion requirement “applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
An inmate may satisfy this exhaustion requirement by “properly following all of the
steps laid out in the prison system's grievance procedure,” including meeting deadlines
and complying with other critical procedural rules. 4 Little v. Jones, 607 F.3d 1245, 1249

Exceptions to the exhaustion requirement arise where the administrative remedies are not
“available” to the prisoner, such as where “prison officials prevent, thwart, or hinder a prisoner's
efforts to avail himself of an administrative remedy,” Little v. Jones, 607 F.3d 1245, 1250 (10th
Cir. 2010), or where the grievance procedure is “essentially ‘unknowable’—so that no ordinary
prisoner can make sense of what it demands[.]” Ross v. Blake, 578 U.S. 632, 644 (2016) (citations
omitted). Neither exception is relevant here.
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(10th Cir. 2010) (citing Woodford, 548 U.S. at 90); see also Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002) (“An inmate who begins the grievance process but does not
complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his
administrative remedies.”). Importantly, a court must examine whether the exhaustion
requirement is satisfied before examining the merits of a plaintiff's claims. See, e.g., Jones
v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought in court.”) (citation
omitted); Woodford, 548 U.S. at 84 (“Exhaustion is no longer left to the discretion of the
district court, but is mandatory.”).
2.

Timing of Exhaustion

“Since the PLRA makes exhaustion a precondition to filing a suit, an action brought
before administrative remedies are exhausted must be dismissed without regard to
concern for judicial efficiency.” Ruppert v. Aragon, 448 F. App’x 862, 863 (10th Cir. 2012)
(citations omitted and emphasis omitted). A pre-suit failure to exhaust cannot be cured by
post-exhaustion filing of an amended complaint. May v. Segovia, 929 F.3d 1223, 1229
(10th Cir. 2019) (“[The plaintiff’s] argument that ‘the plaintiff’s operative [amended]
complaint controls the analysis for a statutory exhaustion requirement’ is likewise
meritless.”); see also Snyder v. Harris, 406 F. App’x 313, 317 (10th Cir. 2011) (“An inmate
is not permitted to complete the administrative exhaustion process after he files suit.”). As
the Tenth Circuit stated in May, “adding or substituting a defendant may create a new
claim for some purposes [but] it does not do so for purposes of the PLRA exhaustion
requirement.” May, 929 F.3d at 1230 (emphasis in original). This is because an “amended
complaint, as the operative complaint, supersedes the original complaint’s allegations but

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not its timing.” Id. at 1229 (emphasis in original). Under the PLRA, the operative question
is “the timing of the claim alleged, not the sufficiency of the allegations.” Id. at 1229.
3.

Application

Plaintiff commenced this lawsuit on November 9, 2023. See Compl. [#1]. By that
date, however, he had not exhausted administrative remedies as to any of the incidents
involving Nurse Trujillo. The first incident, involving medication, allegedly occurred on
September 26, 2023. See Motion for Leave [#43] at 2. Plaintiff grieved that incident but
did not file his Step 3 grievance until November 18, 2023—more than a week after he
filed this lawsuit. See id. at 17 (attached Step 3 grievance dated “11-18-2023”). The
second and third incidents, which involved Plaintiff’s physical therapy appointments, had
not yet occurred when Plaintiff filed this suit. Id. at 4 (second incident allegedly occurred
on March 13, 2024), 5 (third incident allegedly occurred on October 5, 2024). Plaintiff’s
own attached evidence shows that none of his claims against Nurse Trujillo were
exhausted by the time he filed this action.
If the Court were to allow Plaintiff to amend his pleading with these new allegations,
his second amended complaint would “supersede[] the original complaint’s allegations
but not its timing.” May, 929 F.3d at 1229. Adding this new defendant might create a new
claim for some purposes but “it does not do so for purposes of the PLRA exhaustion
requirement.” Id. at 1230. This action was, and would remain, “brought” on November 9,
2023, which is undisputably before Plaintiff had exhausted administrative remedies as to
any of the incidents involving Nurse Trujillo. Those amended allegations would face
dismissal for failure to exhaust. Therefore, in addition or in the alternative to misjoinder,

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the Court recommends that the Motion for Leave [#43] also be denied on the basis of
futility, as the new allegations would be subject to dismissal for failure to exhaust.
C.

Motion for Extension of Time [#46]
Plaintiff also asks the Court for an extension of the deadline for amendment of

pleadings and joinder of parties because, although he filed his Motion for Leave [#43]
before the deadline, he “ha[d] not received a ruling back on the motion an order to move
forward with filing his amended complaint/joinder.” Motion for Extension of Time [#46] at
1-2.
As discussed above, the Court is recommending denying leave to amend on the
basis of misjoinder and futility. These deficiencies have nothing to do with timeliness.
Therefore, the Motion for Extension of Time [#46] is denied as moot.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that Plaintiff’s Motion for Leave to File Amended
Complaint [#43] be DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension of Time [#46] is
DENIED AS MOOT.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may serve and file specific written objections to the proposed findings and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and

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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. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge's findings and
recommendations waives appellate review of both factual and legal questions.” MoralesFernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).

Dated: March 6, 2025

BY THE COURT:

Kathryn A. Starnella
United States Magistrate Judge

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