Houser v. Corizon et al

Filing 56

MEMORANDUM DECISION AND ORDER granting in part and denying in part 48 Motion to Amend Complaint to Clarify Allegations and Causes of Action. Amended Complaint due by 9/25/2015. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JON HOUSER,

Case No. 1:13-cv-00006-EJL

Plaintiff,
MEMORANDUM DECISION
AND ORDER

vs.
CORIZON, SCOTT LOSSMANN,
GARTH GULICK, CATHERINE
WHINNERY, GLEN BABICH, and
MARK SPELICH,

(Dkt. 48)

Defendants.

Pending before the Court is Plaintiff’s Motion to Amend Complaint to Clarify
Allegations and Causes of Action (Dkt. 48), seeking to replace Plaintiff’s pro se
Complaint (Dkt. 1) with an Amended Complaint, now that Plaintiff is represented by
counsel. Having carefully reviewed the record, and finding no need for oral argument, the
Court will decide the matter on the written motions, briefs, and record. D. Idaho L. Civ.
R. 7.1(d).
BACKGROUND
Plaintiff filed this action on January 4, 2013 alleging that Defendants were
deliberately indifferent in responding to his medical needs. The Court reviewed the
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Complaint pursuant to 28 U.S.C. §§ 1915 and 1915A and allowed Plaintiff to proceed on
his Eighth Amendment claims against Defendants. Initial Review Order (Dkt. 4). The
Court then considered whether to dismiss some claims for failure to exhaust administrative
remedies. The Court allowed Plaintiff to proceed on Counts 1, 2, 3, 4, 6, 8 and 9 of his
Complaint and dismissed without prejudice Counts 5 and 7. Order (Dkt. 43).
Plaintiff now has the assistance of counsel and seeks to file an Amended
Complaint. Plaintiff’s counsel filed a three-paragraph memorandum to support the
requested amendments, arguing only that an amended complaint will “streamline the case,
clarify the allegations and causes of action, . . . and allow for a more orderly litigation of
this matter.” (Dkt. 49, p. 2). Defendant Mark Spelich does not object to the amendments.
(Dkt. 50). However, Defendants Glen Babich, M.D., Corizon, LLC, Scott Lossmann,
M.D., Catherine Whinnery, M.D., and Garth Gulick, M.D. (collectively the “Medical
Provider Defendants”), oppose several of the proposed amendments. (Dkt. 51).
Unfortunately, Plaintiff’s counsel did not respond to the Medical Provider Defendants’
opposition or substantive arguments. For the reasons set forth below, the Court will grant
in part, and deny in part, Plaintiff’s Motion.
MOTION TO AMEND
A.

Standards of Law
District courts have broad discretion in supervising the pretrial phase of litigation.

See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). Once a
district court has issued its scheduling order, a motion seeking to amend pleadings is
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governed first by Federal Rule of Civil Procedure 16(b), and secondarily by Rule 15(a).
See id. at 608. Here, Plaintiff’s Motion to Amend was filed over a year after the original
Complaint, but within the 120 days allowed by the Scheduling Order (Dkt. 46) to amend
pleadings. As a result, Rule 15(a) controls the inquiry.
Rule 15(a) provides that, except for amendments allowed as a matter of course, “a
party may amend its pleadings only with the opposing party’s written consent or the
court’s leave [and] [t]he court should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). FRCP 15’s liberal amendment policy contributes to the over-arching
policy of the Federal Rules of Civil Procedure – “to facilitate a proper decision on the
merits.” Conley v. Gibson, 355 U.S. 41, 48 (1957) – by allowing parties to have an
opportunity to present their best case based on claims and defenses that, for one reason or
another, may have become apparent only after the pleadings have been filed.
However, a district court need not grant leave to amend where the amendment “(1)
prejudices the opposing party, (2) is sought in bad faith, (3) produces an undue delay in
litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946,
951 (9th Cir. 2006). In exercising its discretion with regard to the amendment of
pleadings, “a court must be guided by the underlying purpose of FRCP 15 – to facilitation
a decision on the merits rather than on the pleadings or technicalities.” United States v.
Webb, 655 F.2d 977, 979 (9th Cir. 1981). Indeed, the “Supreme Court has instructed the
lower federal courts to heed carefully the command of [FRCP] 15(a) . . ., by freely
granting leave to amend when justice so requires . . . .” Gabrielson v. Montgomery Ward
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& Co., 785 F.2d 762, 765 (9th Cir. 1986) (quoting Howey v. United States, 481 F.2d 1187,
1190 (9th Cir. 1973)).
B.

Discussion
1.

Proposed Claims and Allegations Reiterating Dismissed Claims Should
be Excluded from the Proposed Amended Complaint.

Count 5 of the original Complaint alleged deliberate indifference in Defendants
Gulick and Lossman “rushing [Plaintiff] into surgery for his (L) knee before having him
seen by a Mental Health provider.” Dkt. 1, p. 17. Count 7 of the original Complaint
alleged deliberate indifference in Defendants Gulick, Lossmann, and Spelich failing to
remove Plaintiff from Hepatitis C treatment after the first MRSA outbreak. Dkt. 1, p. 17.
Paragraphs 77 and 79 of the proposed Amended Complaint repeat the same claims
made in Counts 5 and 7, which the Court dismissed for failure to exhaust.1 (Dkt. 43).
Accordingly, amending the Complaint to reiterate these dismissed claims would be futile.
Additionally, to the extent paragraphs 62 and 64 of the proposed Amended Complaint
include factual allegations that relate solely to claims made in paragraphs 77 and 79
(recycled from dismissed Counts 5 and 7 of the original Complaint), those allegations also
should be excluded from any Amended Complaint.

1

Plaintiff conceded that Count 5 was unexhausted, Order (Dkt. 43, p. 10), and the Court
found Plaintiff failed to exhaust Count 7. Order (Dkt. 43, pp. 14-15). Even though both counts
were dismissed without prejudice, Order (Dkt. 43, p. 16), Plaintiff has not argued that he would
be able to demonstrate exhaustion if he were allowed to amend his Complaint to include the
dismissed counts. Thus, on the record before the Court, nothing has changed to prompt the
Court to reconsider its earlier ruling that Counts 5 and 7—containing claims that are repeated in
paragraphs 77 and 79 of the proposed Amended Complaint—should be dismissed.
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2.

Plaintiff May Not Amend His Complaint to Add or Continue State Law
Medical Malpractice Claims That Did Not go Through the Required
Prelitigation Review.

Plaintiff’s attempt to allege malpractice claims against Dr. Lossmann, Dr.
Whinnery, and Dr. Babich in the proposed Amended Complaint is futile because he did
not undergo the required prelitigation review, and Plaintiff has not provided any argument
that such review is not required. See Idaho Code §-1001 (requiring prelitigation
consideration of personal injury and wrongful death claims and stating those proceedings
are “compulsory as a condition precedent to litigation”). For the same reasons, his claims
against Dr. Gulick are limited to the actual issue that underwent prelitigation review– Dr.
Gulick’s alleged failure to fully inform Plaintiff of the consequences of three surgeries
performed between April and May of 2011. Burke Aff., Ex. A (Dkt. 52). In short,
Plaintiff’s Amended Complaint should include only medical malpractice claims that went
through prelitigation review, a prerequisite imposed by Idaho law.
3.

The Amended Complaint May Include a Negligent Training and
Supervision Claim Against Corizon.

The Medical Provider Defendants argue that Plaintiff’s third cause of action against
Corizon—for negligent retention, training and supervision—fails to state a claim because
Plaintiff has not identified by name any employee whose specific conduct is at issue.
However, the Idaho caselaw relied upon by Defendants to support this argument deal with
the requirements for establishing a genuine issue of material fact at the summary judgment
and/or trial stages of proceedings. In this case, Plaintiff has not had the assistance of

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counsel in obtaining discovery and crafting the case. Hence, the issue presented is
whether the Complaint may be amended with the assistance of counsel now that it has
passed the initial review stage. At this point in the proceedings, the Court finds
amendment to include the third cause of action against Corizon is not futile, and the Court
will apply its discretion and the liberal amendment policy of Rule 15 to allow the proposed
amendment in this regard.2
CONCLUSION
In summary, Plaintiff’s proposed Amended Complaint may assert a cause of action
against Corizon for negligent retention, training and supervision, and may include factual
allegations stated in proposed paragraphs 62 and 64, to these extent these allegations do
not relate solely to the claims raised in proposed paragraphs 77 and 79, which include
claims previously dismissed by the Court for lack of exhaustion. The proposed Amended
Complaint should omit paragraphs 77 and 79 because they propose futile amendments.
Moreover, the proposed Amended Complaint should exclude all state law claims of
medical negligence asserted against Dr. Lossmann, Dr. Babich, and Dr. Whinnery.
Finally, the proposed Amended Complaint should include only the state law claim of
medical negligence against Dr. Gulick related to Plaintiff’s allegation that Dr. Gulick
failed to fully inform Plaintiff of the consequences of three surgeries done in April and

2

This does not, of course, mean that Plaintiff is excused from ultimately proving his
claim on the merits, or that his third cause of action will survive a motion to dismiss or motion
for summary judgment. Those questions are for another day.
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May 2011. All other proposed amendments not specifically discussed in this Order are
allowed.
ORDER
IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend Complaint to
Clarify Allegations and Causes of Action (Dkt. 48), is GRANTED, in part, and DENIED,
in part, as set forth above. Plaintiff shall file an Amended Complaint on or before
September 25, 2015. Defendants shall respond to the Amended Complaint in the ordinary
course.
DATED: September 10, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

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