Guilmette v. Neal et al

Filing 119

OPINION AND ORDER: The Court DENIES Douglas A. Guilmette's motion seeking leave to amend his complaint ECF 111 and DENIES Douglas A. Guilmette's motion to supplement his motion seeking leave to amend his complaint ECF 115 . Signed by Judge Jon E DeGuilio on 6/7/19. (Copy mailed to pro se party). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DOUGLAS A. GUILMETTE,
Plaintiff,
v.

CAUSE NO.: 3:16-CV-716-JD

N. HENRY,
Defendant.
OPINION AND ORDER
Doulas A. Guilmette, a prisoner without a lawyer, has alleged that, on January 7,
2016, Sgt. N. Henry used excessive force against him, resulting in a shoulder injury.
Now, nearly three and a half years later, Guilmette seeks leave to amend his complaint
to add additional defendants, although it is unclear exactly who he wants to add. His
motion to amend (ECF 111) indicates he wishes to add “the regional medical director of
Corizon, Wexford, and I.D.O.C. Supt. Ron Neal” as defendants. In contrast, Guilmette’s
motion to supplement his motion to amend (ECF 115) indicates he wishes to add
“Corizon (Regional Director of Health Care) and Wexford.” There is no mention of Ron
Neal. Guilmette seeks to amend his complaint because, during the course of discovery,
he learned that on July 29, 2016, Dr. Joseph Thompson approved a treatment plan that
included physical therapy and a surgical consultation. Despite that plan, Guilmette
never received either physical therapy or a surgical consultation. Based on these
allegations, Guilmette alleges that the Regional Director of Corizon, Wexford, and Ron
Neal were deliberately indifferent to his serious medical needs.

As an initial matter, Guilmette has not attached a proposed amended complaint
to either his motion to amend or his supplement to that motion. (ECF 111; ECF 115.)
N.D. Ind. L.R. 15-1 requires that a motion to amend be accompanied by “the original
signed proposed amendment as an attachment.”
Setting aside Guilmette’s failure to tender a proposed amended complaint, at this
stage of the proceedings, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). When justice
requires it, leave should be freely given. Id. “Reasons for finding that leave should not
be granted include 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 amendment, [and] futility
of amendment.” Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666
(7th Cir. 2007).
Here, the attempt to amend comes nearly three and a half years after the
incident, and just shy of three years after Dr. Thompson approved the treatment plan.
Furthermore, Guilmette learned of the treatment plan in September of 2018 – more than
eight months before he sought leave to amend his complaint. Thus, there has been
undue delay in this case.
While Guilmette contends otherwise, permitting him to amend at this late hour
will likely result in a substantial delay in the resolution of his claims against N. Henry –

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claims that have now been pending since October of 2016. Thus, the defendant may be
prejudiced by the proposed amendment.
Additionally, allowing the proposed amendments would be futile. To the extent
that Guilmette wishes to add Corizon or Wexford as defendants, he has not alleged
facts that state a claim. A private company performing a governmental function can be
held liable to the same extent as a municipal entity under Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658 (1978). See Rice v. Corr. Med. Servs., 675 F.3d
650, 675 (7th Cir. 2012)(Monell framework applies to private company providing
medical care at correctional facility). In other words, a private company performing
a governmental function cannot be held liable for damages under § 1983 unless a policy
or custom caused the alleged constitutional violation. Guilmette has not alleged that his
constitutional rights were violated due to a policy or custom or either Corizon or
Wexford, and he therefore could not state a claim against them.
To the extent that Guilmette seeks to add Ron Neal or the regional medical
directors of either Corizon or Wexford, he likewise has not alleged facts that state a
claim. Guilmette has not alleged that Neal or either of the regional medical directors
were personally involved in making decisions regarding his medical care. Section 1983
“liability depends on each defendant’s knowledge and actions, not on the knowledge or
actions of persons they supervise.” Burks v. Raemisch , 555 F.3d 592, 594 (7th Cir. 2009).
“[P]ublic employees are responsible for their own misdeeds but not for anyone
else’s.” Id. at 596. The doctrine of respondeat superior, which allows an employer to be

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held liable for subordinates’ actions in some types of cases, has no application to § 1983
actions. Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993). In the absence of
factual assertions that state a claim, it would be futile to permit Guilmette to amend.
Lastly, Guilmette seeks to amend his complaint after the statute of limitations has
expired, and amendment should therefore be granted only if the complaint relates back
to the original complaint. While Guilmette asserts that this amendment would relate
back, he is mistaken. Guilmette has not alleged that Ron Neal, Corizon’s Regional
Medical Director, or Wexford were on notice of his claim prior to the expiration of the
statute of limitations. See Moore v. Indiana, 999 F.2d 1125, 1130-31 (7th Cir. 1993) (where
plaintiff did not request leave to amend his complaint to add defendants until after the
statute of limitations had expired and the defendants to be added were not on notice of
the claim against them, the amended complaint did not relate back to the original
complaint.) Because nothing in the record of this case suggests that Guilmette placed
Ron Neal, Corizon’s Regional Medical Director, or Wexford on notice of his claim
against them prior to the expiration of the statute of limitations, the amendment would
not relate back and any attempt to amend would be futile.
For these reasons, the court:
(1) DENIES Douglas A. Guilmette’s motion seeking leave to amend his
complaint (ECF 111); and
(2) DENIES Douglas A. Guilmette’s motion to supplement his motion seeking
leave to amend his complaint (ECF 115).

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SO ORDERED on June 7, 2019
/s/ JON E. DEGUILIO
JUDGE
UNITED STATES DISTRICT COURT

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