West v. Secretary, DOC et al

Filing 163

OPINION AND ORDER denying as moot re: 150 MOTION to dismiss for failure to state a claim, denying as moot 98 MOTION to Dismiss Amended Complaint (Document 21 ), denying as moot 151 MOTION to dismiss for failure to state a c laim, denying as moot 127 MOTION to Strike 114 Answer to amended complaint MOTION for More Definite Statement, granting 157 MOTION to Amend/Correct 1 Complaint and Plaintiff shall file a Second Amended Complaint within thirty (30) days of the date of this Order and serve a copy upon the Defendants, denying as moot 147 MOTION to dismiss for failure to state a claim. Signed by Judge Sheri Polster Chappell on 3/21/2019. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES DARYL WEST,
Plaintiff,
v.

Case No: 2:16-cv-694-FtM-38UAM

RONALD HEMPHILL, CARMELLO
BERRIOS, KAREN BLANKENSHIP,
H. WETTERER, BONNIE LAROSA,
ROBERT GILBREATH, SABRINA
SCHULTZ, DIANN SPRATT, JULIE
JONES, WEXFORD HEALTH
SOURCES, KATHY CONNER,
KARA WILLIAMS and JAMES
LICATA,
Defendants.
/
ORDER1
Before the Court is Plaintiff’s Motion for Leave to Amend Complaint filed March 6,
2019 (Doc. 157). Plaintiff attaches a proposed Second Amended Complain to his Motion
(Doc. 157 at 6-29). Defendants Hemphill, Blakenship, Wetterer, LaRoasa and Wexford
Health Sources, Inc. (collectively the “Wexford Defendants”) filed a Response in
Opposition to the Motion on March 11, 2019 (Doc. 161). As of the date of this Order
Defendants Licata, Williams, Conner, and Jones have not filed a response to the Motion

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and the time for doing so has expired. M.D. Fla. R. 3.01(b). For the following reasons,
the Court GRANTS the Motion.
Plaintiff initiated this action by filing a pro se civil rights complaint (Doc. 1). Prior
to the Court ordering service, Plaintiff filed an amended complaint as directed by the Court
(Doc. 21) and submitted numerous exhibits in support (Doc. 22). In response, Defendants
Julie Jones, James Licata, Kara Williams and Diann Spratt filed a joint Motion to Dismiss
on July 20, 2018 (Doc. 98), Defendant Hemphill filed a Motion to Dismiss on February 4,
2019 (Doc. 147), Defendant Wexford filed a Motion to Dismiss on February 21, 2019
(Doc. 150), and Defendant Wetter filed a Motion to Dismiss (Doc. 151) on February 21,
2019. Defendants Blakenship and Larosa filed an Answer and Affirmative Defenses on
November 19, 2018 (Doc. 114). Defendant Conner’s response is due to be filed on or
before March 28, 2019. See Doc. 152. Service has not yet been effectuated upon
Defendants Berrios, Gilbreath, and Schultz. See Docs. 83, 85 and 86. On February 21,
2019, counsel entered an appearance on behalf of Plaintiff (Doc. 149).
Because Plaintiff is not entitled to amend as a matter of right under Fed. R. Civ. P.
15(a)(1), he may amend his “pleading only with the opposing party’s written consent or
the court’s leave.” Fed. R. Civ. P. 15(a)(2). Leave to amend is given freely “when justice
so requires.” Id. Rule 15(a)(2) “contemplates that leave shall be granted unless there is
a substantial reason to deny it.” Halliburton & Assocs., Inc. v. Henderson, Few & Co.,
774 F.2d 441, 443 (11th Cir. 1985). Absent a finding of “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the

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amendment, [or] futility of amendment” the Court should grant leave “freely.” Foman v.
Davis, 371 U.S. 178, 182 (1962).
Here, the Wexford Defendants object to the proposed Second Amended Complaint
drafted by counsel on the basis that the pleading is “confusing, vague, ambiguous and
will certainly prompt Motions for More Definite Statements followed by Motions to
Dismiss.” Doc. 161 at 2. The Wexford Defendants then proceed to point out alleged
deficiencies in the proposed Second Amended Complaint as they relate to Wexford. Id.
at 3-4. As noted supra, only the Wexford Defendants object to Plaintiff being permitted
to file a Second Amended Complaint. The Court finds no bad faith or other inappropriate
conduct, nor will there be undue delay by granting Plaintiff’s Motion since discovery has
not yet begun. The Court notes that counsel only recently sua sponte entered an
appearance on behalf of the Plaintiff. To the extent that the Wexford Defendants contend
that the Second Amended Complaint after it is filed is deficient, they may renew their
motions to dismiss at that time. However, to permit Plaintiff an opportunity to correct the
alleged deficiencies in the proposed Second Amended Complaint, the Court will afford
Plaintiff an additional thirty (30) days within which to file the operative Second Amended
Complaint.
Accordingly, it is now
ORDERED:
1. Plaintiff’s Motion to Amend Complaint (Doc. 157) is GRANTED and Plaintiff
shall file a Second Amended Complaint within thirty (30) days of the date of
this Order and serve a copy upon the Defendants.

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2. The following motions are DENIED as moot: (a) Defendants Julie Jones,
James Licata, Kara Williams and Diann Spratt’s Motion to Dismiss (Doc. 98);
(b) Defendant Hemphill’s Motion to Dismiss (Doc. 147); (c) Defendant
Wexford’s Motion to Dismiss (Doc. 150); (d) Defendant Wetter’s Motion to
Dismiss (Doc. 151); and (e) Plaintiff’s Motion to Strike Defendants’ Affirmative
Defenses (Doc. 127).
DONE and ORDERED in Fort Myers, Florida this 21st day of March 2019.

SA; FTMP-1
Copies: All Parties of Record

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