Nichols v. Kansas Department of Corrections
Filing
73
MEMORANDUM AND ORDER denying 64 Motion to Amend. For the reasons set out in the Memorandum and Order, the Court denies Plaintiff leave to file another amended complaint. See Memorandum and Order for additional details. Signed by Magistrate Judge Gerald L. Rushfelt on 4/25/2012. Mailed to pro se Plaintiff Curtis Nichols by regular and certified mail. Certified Tracking Number: 7002 2030 0000 9348 8909. (bw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CURTIS NICHOLS,
Plaintiff,
Civil Action
v.
No. 10-2086-JAR-GLR
KANSAS DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
MEMORANDUM AND ORDER
The Court has under consideration a Motion to Amend (ECF No. 64), filed by pro se Plaintiff
Curtis Nichols. By Order Referring Motion dated March 13, 2012, the District Court referred the
motion for disposition. For the reasons set out below, the motion is denied.
I.
Procedural History
In February 2010, Plaintiff commenced this action against one defendant, Kansas Depart-
ment of Corrections (KDOC), alleging employment discrimination under Title VII, 42 U.S.C. §
2000e, et seq.1 After KDOC moved for dismissal (ECF No. 9), Plaintiff sought leave to amend his
complaint (ECF No. 11). On August 18, 2010, the Court granted the motion to dismiss and denied
the motion to amend without prejudice to Plaintiff’s refiling it in compliance with D. Kan. Rule
15.1.2 Plaintiff filed a motion to amend with an attached proposed amended complaint on October
15, 2010.3 The Court granted that motion in part on November 23, 2010, and directed Plaintiff to
1
See Compl. (ECF No. 1).
2
See Mem. & Order (ECF No. 13).
3
See Mot. Leave to File Am. Compl. (ECF No. 19).
file an Amended Complaint that omits KDOC as a defendant within fourteen days.4
After two extensions of time, Plaintiff timely filed an Amended Complaint against Michael
Schmidling, Ben Reynolds, James Arnold, and William Gregory on January 18, 2011, alleging racial
discrimination under Title VII and 42 U.S.C. § 1983.5 Summons were issued on January 25, 2011,
and returned unexecuted on February 10, 2011.6 Four months later Plaintiff filed a Motion to Allow
Personal Service (ECF No. 34), which was denied without prejudice on July 18, 2011.7 The Court
extended the time for service to 120 days from the date of the order, however, and ordered service
on the defendants other than Ben Reynolds (who had died) at addresses provided by Plaintiff.
Summons were again returned unexecuted as to Schmidling and Arnold. Defendant Gregory
responded to the service on him by moving to dismiss the action.
On November 8, 2011, the Court entered a Scheduling Order, which set a deadline of
February 20, 2012, for filing motions to join additional parties or otherwise amend the pleadings.8
On November 21, 2011, the Court granted Gregory’s motion to dismiss.9 It reasoned that § 1983
provides no basis for Plaintiff’s action because Title VII provides an exclusive remedy for the
alleged racial discrimination.10 It further found that Title VII does not permit personal capacity suits
4
See Mem. & Order (ECF No. 21).
5
See Am. Compl. (ECF No. 27).
6
See (ECF Nos. 30-33.)
7
See Order (ECF No. 35).
8
See Scheduling Order (ECF No. 50).
9
See Mem. & Order (ECF No. 54).
10
Id. at 4-5.
2
against individuals or official capacity suits against a non-supervisory employee such as Gregory.11
The same day it dismissed this action as to Gregory, the Court ordered Plaintiff to show
cause why it should not dismiss the action against the unserved defendants for failure to timely serve
them.12 Plaintiff then filed a “Motion for Exparte Orders to Facilitate Service of Process and Motion
for Oral Arguments.” The Court denied that motion on January 3, 2012.13 It dismissed the action
against the deceased Ben Reynolds and granted Plaintiff thirty days to provide a current address for
Defendants Arnold and Schmidling, so that they could be served with process.14 In granting the
additional thirty days, the Court noted factors that favored the extension of time, i.e., Plaintiff’s
attempts to serve the defendants and concerns about dismissing pro se complaints for failure to
effect proper service without first providing specific instructions on how to correct the defects in
service.15 But it also noted two factors against the extension: (1) “the limitations period has likely
run on Plaintiff’s claims” and (2) the likelihood that Defendants would be prejudiced by the delay
in service.16
On February 10, 2012, the Court dismissed this action without prejudice as to Defendants
Schmidling and Arnold, because Plaintiff had not provided a proper address to serve either
11
Id. at 5-6.
12
See Notice & Order to Show Cause (ECF No. 55).
13
See Mem. & Order (ECF No. 59). The Court’s mailing of this document to Plaintiff was
returned to the Court as unclaimed. See Certified Mail Receipt (ECF No. 60). Plaintiff’s pending
motion to reconsider is premised on not receiving notice of ECF No. 59. See Mot. Reconsider (ECF
No. 65).
14
ECF No. 59 at 5-6.
15
Id. at 5.
16
Id.
3
defendant.17 On that same date, judgment was entered against Plaintiff based on the various orders
of the Court (ECF Nos. 21, 54, 59, and 61).18
On February 20, 2012, Plaintiff filed the Motion to Amend (ECF No. 64) that is now before
the Court, a motion to reconsider (ECF No. 65) that remains pending before the District Judge, and
a notice of appeal (ECF No. 66). The Tenth Circuit has abated the appellate proceedings pending
notification that this Court has resolved the motion to reconsider.19 This Court thereafter struck the
Judgment, given the deadline for amendments set by the Scheduling Order. It also referred the
motion to amend to the undersigned magistrate judge for disposition.
II.
Legal Standard Applicable to Motion for Leave to Amend
Parties may amend pleadings “once as a matter of course” before trial if they do so within
(A) twenty-one days of serving the pleading or (B) “if the pleading is one to which a responsive
pleading is required,” twenty-one days of service of a responsive pleading or a motion under Fed.
R. Civ. P. 12(b), (e), or (f), whichever is earlier.20 Other amendments before trial are allowed “only
with the opposing party’s written consent or the court’s leave.”21 When a party moves to amend a
pleading after the court has finally dismissed the action, the party must move to reopen the case
17
See Order (ECF No. 61).
18
See Judgment in a Civil Case (ECF No. 62). Plaintiff received notice of this Judgment on
February 11, 2012. See Certified Mail Receipt (ECF No. 63).
19
See Order of Tenth Circuit (found at ECF No. 70).
20
Fed. R. Civ. P. 15(a)(1).
21
Fed. R. Civ. P. 15(a)(2).
4
under Fed. R. Civ. P. 59(e) or 60(b), before moving to amend under Fed. R. Civ. P. 15.22 Courts
only consider whether to allow an amendment after the case has been re-opened.23 But once the case
is reopened, they “should freely give leave when justice so requires.”24 Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on
procedural niceties.’”25
Courts may deny leave to amend, however, based on “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, [or] futility
of amendment.”26 “Absent flagrant abuse, bad faith, futility of amendment, or truly inordinate and
unexplained delay, prejudice to the opposing party is the key factor in deciding a motion to
amend.”27 In fact, the prejudice factor is the “most important” consideration in the decision.28
Typically, courts “find prejudice only when the amendment unfairly affects” a party’s ability to
22
Calderon v. Kan. Dep’t of Soc. & Rehabilitation Servs., 181 F.3d 1180, 1185 (10th Cir.
1999). See also Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 628 (1st Cir. 2000) (holding that unless
the judgment or order of dismissal that acts as a judgment is set aside or vacated pursuant to Rule
59 or 60, “the district court had no power to allow an amendment to the complaint because there was
no complaint left to amend”).
23
See Glenn v. First Nat’l Bank in Grand Junction, 868 F.2d 368, 371 (10th Cir. 1989).
24
Fed. R. Civ. P. 15(a)(2); accord Foman v. Davis, 371 U.S. 178, 182 (1962).
25
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Hardin v.
Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
26
Id. (quoting Foman, 371 U.S. at 182).
27
Rubio ex rel. Z.R. v. Turner Unified Sch. Dist. No. 202, 453 F. Supp. 2d 1295, 1307 (D.
Kan. 2006).
28
Minter, 451 F.3d at 1207.
5
prosecute or defend the lawsuit.29 This most often occurs when the amendment “raise[s] significant
new factual issues” or arises from a different theory or subject matter than previously asserted.30 To
justify denying leave to amend, the proposed amendment must “work an injustice” to an opposing
party.31
Whether to allow a proposed amendment, after the permissive period, addresses the sound
discretion of the court.32 “In exercising its discretion, the court must be mindful that the Federal
Rules of Civil Procedure are designed to facilitate decisions on the merits rather than on pleading
technicalities.”33
III.
Analysis
Plaintiff moved for leave to amend his complaint at the same time that he moved for recon-
sideration under Fed. R. Civ. P. 59(e). Although the District Court has not ruled on the motion for
reconsideration, it has struck the judgment entered in this case, reopened the case, and referred the
motion to amend for disposition. Given the re-opening of the case and the abatement of the appeal
by the Tenth Circuit, the Court properly considers the motion to amend under the liberal policy
favoring amendments set out in Fed. R. Civ. P. 15(a).
29
Id. at 1208.
30
Id.; accord Acker v. Burlington N. & Santa Fe R. Co., 215 F.R.D. 645, 654 (D. Kan. 2003)
(stating that prejudice means undue difficulty in prosecuting or defending a lawsuit due to “a change
of tactics or theories on the part of the other party”) (quoting Heslop v. UCB, Inc., 175 F. Supp. 2d
1310, 1313 (D. Kan. 2001)).
31
United States v. Sturdevant, No. 07-2233-KHV-DJW, 2008 WL 4198598, at *3 (D. Kan.
Sept. 11, 2008) (quoting Koch v. Koch Indus., 127 F.R.D. 206, 209-10 (D. Kan. 1989)).
32
See Foman, 371 U.S. at 182; Wilkerson v. Shinseki, 606 F.3d 1256, 1268 (10th Cir. 2010);
Minter, 451 F.3d at 1204.
33
Collins v. Wal-Mart, Inc., 245 F.R.D. 503, 507 (D. Kan. 2007).
6
Through his most recent and currently pending motion to amend, Plaintiff again seeks to
bring suit under Title VII for racial discrimination against Schmidling, Arnold, and Gregory, while
also naming the State of Kansas and Secretary of Corrections Roger Werholtz as defendants.34 He
alleges that he “has been subjected to racially inappropriate comments, inappropriate conduct,
harassment, hostile work environment and intimidation” since August 2008.35 He further alleges
that the State of Kansas has failed to properly train its employees regarding civil right laws and
failed to investigate his complaints.36
Like his first attempt to amend his complaint in this action more than two years ago, Plaintiff
has not complied with D. Kan. Rule 15.1, which requires that the party seeking leave to amend
attach a copy of the proposed pleading. As already explained to Plaintiff, this is not merely a technical requirement, because “compliance ‘is critical for the court to assess the different factors
relevant in deciding a motion to amend.’”37 Here, however, Plaintiff has clearly provided his entire
proposed amended complaint within the body of his motion to amend instead of attaching it to the
motion. While technically in non-compliance with D. Kan. Rule 15.1, the Court will not deny the
pro se motion on that technicality.
Plaintiff’s proposed amendment has substantive defects that warrant denying his motion to
amend. First, Plaintiff seeks to name Gregory as a defendant even though the Court has already
granted his motion to dismiss. Plaintiff also seeks to proceed with this action against Arnold and
34
Mot. Am. at 3.
35
Id. at 2.
36
Id. at 3.
37
See Mem. & Order (ECF No. 13) (quoting Hammond v. City of Junction City, Kan., No.
00-2146-CM, 2002 WL 31545354, at *1 (D. Kan. Nov. 18, 2002)).
7
Schmidling although the Court has dismissed them for lack of timely service of process. When
faced with an unfavorable dismissal, parties may not simply amend their complaint to reinstate
dismissed parties or claims. Plaintiff has had ample time to provide addresses for Arnold and
Schmidling so that they may be properly served. But he has not done so. And his current motion
to amend does not correct the defects that the Court has pointed out to Plaintiff multiple times. The
motion to amend provides no address for serving Arnold, Schmidling, or either of the two newly
named defendants. Given the procedural history of this case, these reasons alone justify denying
the motion to amend.
A court, furthermore, may properly deny leave to amend on undue delay alone when there
is no justification for failing to amend earlier.38 Leave to amend is properly denied when there is
an unexplained delay of nineteen months and a prior oral ruling that disposes of the entire case.39
Courts do not favor amendments “to salvage a lost case by untimely suggestion of new theories of
recovery, especially after the trial judge has already expressed adverse rulings.”40 The same can be
said of attempts to salvage a case by naming new defendants. Plaintiff has not explained why he
delayed more than two years after his original complaint and more than a year after his first amended
complaint to name the State of Kansas or the Secretary of Corrections as defendants in this action.
Six weeks after the Court noted that his claims against Arnold and Schmidling might be untimely
and that those defendants might be prejudiced by the delay in serving them,41 and ten days after the
38
See Hayes v. Whitman, 264 F.3d 1017, 1026-27 (10th Cir. 2001).
39
Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799-800 (10th Cir. 1998).
40
Id. at 800.
41
See Mem. & Order (ECF No. 59).
8
Court dismissed them for lack of timely service,42 Plaintiff moved to amend his complaint to include
the same claims against them and to name two new defendants. He also asserts that the State of
Kansas failed to train employees and failed to investigate his claims. But he provides no reason for
the Court to excuse this lengthy, unexplained delay in naming the new defendants. The delay alone
could suffice to deny leave to amend. It certainly suffices when coupled with the procedural history
of this case, including the Court’s prior orders of dismissal43 and Plaintiff’s two prior complaints that
did not name the State of Kansas or the Secretary of Corrections.44
Given the dismissals of all prior defendants named in this action, it is difficult to gauge the
prejudice to them. But Defendant Gregory would obviously be unduly prejudiced by allowing
Plaintiff to re-assert claims against him. The Court, furthermore, has already suggested that Arnold
and Schmidling might be prejudiced by allowing additional time to serve them. The two new
defendants could also be prejudiced by Plaintiff’s delay in naming them prior to his most recent
proposed amendment. Although prejudice to the defendants is often the most important factor in
deciding whether to permit an amendment, the facts of this case (including an inordinate and unexplained delay) reduce its relative importance. Here, the proposed amendment would certainly
prejudice Defendant Gregory and might prejudice the other named defendants. Such prejudice pro-
42
See Order (ECF No. 61).
43
That the Court dismissed Defendants Arnold and Schmidling without prejudice was not an
invitation to amend the complaint. Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 628 (1st Cir. 2000).
A “without prejudice” dismissal merely informs the litigant that the dismissal of itself will not
preclude the filing of a new separate action against the defendants. See id.
44
The fact that Plaintiff filed his motion to amend within the court-established deadline is
insufficient standing alone to excuse the delay. That a scheduling order permits the filing of a
motion to amend by a certain date does not mean that a timely motion will necessarily succeed or
that the Court may not find undue delay in seeking the amendment.
9
vides additional support for denying leave.45
For the foregoing reasons, the Court denies the Motion to Amend (ECF No. 64) filed by
Plaintiff. The liberal amendment policy of Fed. R. Civ. P. 15(a) does not envision a new amendment
each time the Court dismisses a party or claim. This case is over two years old. Plaintiff has yet to
present a complaint against a properly served defendant that can withstand a motion to dismiss. His
proposed amendment improperly attempts to re-assert claims against dismissed defendants and fails
to cure the defects that led to the dismissal of two defendants for failure to serve them. Nor does it
provide sufficient information to serve the newly named defendants.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 25th day of April, 2012.
S/Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge
45
The Court recognizes that there is no need to find any prejudice when there is undue delay.
First City Bank v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127, 1133 (10th Cir. 1987); Wopsock
v. Natchees, 279 F. App’x 679, 689 (10th Cir. 2008). The noted prejudice, nevertheless, provides
additional support for denying leave.
10
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