Green v. Maldonodo et al

Filing 45

RULING (see attached) denying Plaintiff's 44 Motion for Leave to Amend Complaint on the present record. If Plaintiff wishes to reassert the motion to amend, he must file an affidavit on or before November 16, 2018 which explains the manner and circumstances in which the allegations in the pleadings were changed and amended, as discussed in the Ruling. Signed by Judge Charles S. Haight, Jr. on 10/30/2018. (Ghosh, R.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

COURTNEY GREEN,
Plaintiff,

3:17-cv-00957 (CSH)

v.
EDWARD MALDONADO, CT
DEPARTMENT OF CORRECTION,
JOHNNY WRIGHT, GARY WRIGHT,
KOPACZ,

OCTOBER 30, 2018

Defendants.

RULING ON MOTION FOR LEAVE TO AMEND
HAIGHT, Senior District Judge:
Plaintiff pro se Courtney Green, a Connecticut prison inmate who has commenced this civil
rights action against the State Department of Correction and several prison employees, has filed a
motion [Doc. 44] for leave to further amend his complaint, in the form of a “Third Amended
Complaint” attached to his motion papers. The motion is governed by Rule 15(a)(2) of the Federal
Rules of Civil Procedure. For the reasons which follow, this motion to amend will be denied.
The case has been the subject of two earlier Rulings by the Court. The first of these Rulings,
2018 WL 2725445 (D. Conn. June 6, 2018), on Defendants’ motion to dismiss Plaintiff’s Second
Amended Complaint, granted the motion to dismiss in part, denied dismissal in part, and dismissed
certain claims and Defendants from the action.1 The Second Ruling, 2018 WL 3302590 (D. Conn.

1

The Court's Ruling on Defendants' motion to dismiss Plaintiff's Second Amended Complaint is available
at Docket Number 41.

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July 5, 2018), denied Plaintiff’s motion for reconsideration of the first Ruling.2 Familiarity with
both Rulings is assumed.
Plaintiff’s present motion asks for the Court’s “permission for leave to amend his complaint,
so that he can assert factual allegations that impose liability on Edward Maldonado.” Doc. 44 at
1. That stated purpose arises out of certain background facts which it is necessary to recount briefly.
Edward Maldonado, one of several individual Defendants, is identified in the Second
Amended Complaint [Doc. 19] as the “Warden at Osborn Correctional Institution,” the Connecticut
prison where Green was incarcerated during the incidents in suit. Doc. 19 at 2. “Defendant
Kopacz” (first name not alleged) is identified as “a correctional officer and Administrative Remedies
Coordinator” at Osborn. Id.
Green’s Second Amended Complaint alleges a wrongful failure by Osborn prison
administrators to assign Green shower accommodations which he needed because of a physical
limitation. Green was denied a unit transfer. He filed an appeal of that issue, allegedly “in a timely
manner pursuant to Administrative Directive 9.6(6), CI Administrative Remedies.” Doc. 19 at ¶ 7.
Paragraph 10 of the Second Amended Complaint begins with the allegation: “On or about January
10, 2017, the plaintiff’s ADA appeal was returned from Correctional Officer/Administrator
Kopacz.” That paragraph then alleges in detail what Kopacz said or did not say, did or did not do,
at or about the time when as Administrative Remedies Coordinator he “signed the plaintiff’s ADA
appeal.” After these allegations relating to Kopacz’s conduct, ¶ 10 of the Second Amended
Complaint concludes with the allegation: “The ADA appeal was signed by Warden Maldonado.”
Green swore
2

The Court's Ruling on Plaintiff's motion for reconsideration is available at Docket Number 43.

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to the truth of the allegations contained in ¶ 10 (and elsewhere throughout the pleading). Doc.
19 at 9.
The Court’s Ruling on Defendants’ motion to dismiss held that the Second Amended
Complaint, in its recitation of Kopacz’s acts of omission and commission, “alleged sufficient
facts to establish an Eighth Amendment claim for deliberate indifference to Plaintiff’s health and
safety against Kopacz.” 2018 WL 27254445 at *5. Plaintiff’s claim against Kopacz in his
individual capacity survived dismissal. As for Warden Maldonado, the Court held: “Plaintiff’s
claim against Maldonado is based on the sole allegation that his signature appears on plaintiff’s
ADA appeal denial,” a “bare allegation” that is “insufficient to establish that Maldonado acted
with deliberate indifference to plaintiff’s health and safety.” Id. at *6. Plaintiff’s claims against
Maldonado were dismissed.
Plaintiff‘s motion for reconsideration articulated certain theories of complicity on
Maldonado’s part, but no allegations in the Second Amended Complaint supported them, and the
Ruling denying reconsideration reiterated that the pleading “contains just one factual allegation
regarding Maldonado”—that he signed off on the denial of Green’s administrative appeal. 2018
WL 3302590, at *2. The reconsideration Ruling concluded by saying that if Plaintiff “can assert
factual allegations that, if proven true, would impose liability on Maldonado, Plaintiff may avail
himself of his right to seek to amend his complaint, either with Defendants’ consent, or with the
court’s leave.” Id.
The Defendants having failed to consent, Green now moves to further amend his
complaint. He includes with his motion a proposed Third Amended Complaint [Doc. 44]. Green
also swears to the factual accuracy of that pleading. Doc. 44 at 14. The stated purpose of the
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proposed amended pleading is to “assert factual allegations that impose liability on Edward
Maldonado.” Id. at 1. It is necessary to consider the facts that Green deems sufficient for that
purpose. The exercise will not take long. All Green does in support of this motion is to change
¶ 10 of the Second Amended Complaint by deleting the name “Kopacz” and replacing it with the
name “Maldonado.” That is to say – and the proposition is so startling, it is useful to restate it
– wherever in the prior complaint Green swore under oath that Kopacz did or failed to do certain
acts, Green now swears under oath that it was Maldonado who did or failed to do them. The
contrast is striking, since each of the seemingly contradictory versions purports to depend upon
Green’s personal knowledge of the relevant facts. These circumstances militate against granting
leave to Plaintiff to file and serve the proposed amended complaint. Whether or not to do so is
vested in the Court’s informed discretion. This chronology of events supports, if it does not
compel, the inference that Plaintiff is editing his recitation of facts in order to avoid the adverse
effect of the Court’s Ruling dismissing his claim against Warden Maldonado. That is not a
favored litigation stratagem. In Svege v. Mercedes-Benz Credit Corp., 329 F. Supp. 2d 285, 287
(D. Conn. 2004), Judge Kravitz stated “[a]s a general rule, of course, a party’s pleadings are
admissible as admissions, either judicial or evidentiary, as to the facts alleged in that pleading,”
and quoted the Second Circuit’s declaration in United States v. McKeon, 738 F.2d 26, 31 (2d Cir.
1984): “A party cannot advance one version of the facts in its pleadings, conclude that its
interests would be better served by a different version, and amend its pleadings to incorporate that
version, safe in the belief that the trier of fact will never learn of the change in stories.” That is
not an appropriate function of an amended pleading. In Kunglig Jarnvagsstyrelsen v. Dexter &
Carpenter, Inc., 32 F.2d 195, 198 (2d Cir. 1929), Judge Swan said “[w]hen a pleading is amended
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or withdrawn, the superseded portion ceases to be a conclusive judicial admission; but it still
remains as a statement once seriously made by an authorized agaent, and as such it is competent
evidence of the facts stated, though incontrovertible, like any other extra-judicial statement made
by a party or his agent.” In Colliton v. Cravath, Swaine & Moore LLP, No. 08 Civ. 0400, 2008
WL 4386764, at *13 (S.D.N.Y. Sept. 24, 2008), which denied leave to amend a pro se complaint,
the district court said of the proposed pleading: “Colliton’s Amended Complaint contradicts his
verified original complaint, in a transparent attempt to plead around the legal defenses presented
by Cravath in its pre-motion letter to this Court.” The question that arises in this case is whether
Green is engaged in a similar exercise.
While Rule 15(a)(2) provides that the district court “should freely give leave [to amend]
when justice so requires,” the Supreme Court held in Foman v. Davis, 371 U.S. 178, 182 (1962)
that leave should be denied when sought in “bad faith” or the “futility of the amendment”
appears, as where an amended complaint would not survive a motion to dismiss. In the case at
bar, the present motion does not reveal the circumstances in which the proposed amended
complaint suddenly depicts Maldonado as the individual performing the acts which the prior
complaint alleges were performed by Kopacz. If this is simply an effort by Plaintiff to revive a
dismissed claim against Maldonado, it is not an amendment sought in good faith, and would not
survive a motion to dismiss. In consequence, Plaintiff’s motion [Doc. 44] for leave to file a Third
Amended Complaint in the form attached to his motion is DENIED on the present record. If
Plaintiff wishes to reassert that motion, he must file an affidavit on or before November 16,
2018 which explains the manner and circumstances in which the allegations in the pleadings were
changed and amended, in the particulars discussed in this Ruling.
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It is SO ORDERED.
Dated: New Haven, Connecticut
October 30, 2018
/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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