Lopez-Aguirre v. Board of County Commissioners of Shawnee County, Kansas et al

Filing 373

MEMORANDUM AND ORDER granting in part and denying in part 294 Motion to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 5/23/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAURA V. LOPEZ-AGUIRRE,
Individually, as Administrator of the Estate
of Julio C. Aguirre, deceased, and as
Next Friend for her Minor Children
Em. A. and El. Al,

)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
BOARD OF COUNTY
)
COMMISSIONERS, et al.,
)
)
Defendants.
)
___________________________________ )

Case No. 12-2752-DDC-KGG

MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion for Leave to File a Third Amended
Complaint to add an additional cause of action against Defendant Corizon Health,
Inc. and add a punitive damages claim to a previous claim of negligence. (Doc.
294.) After a careful review of the submissions of the parties, the Court GRANTS
Plaintiff’s motion to add Defendant Corizon to its §1983 claim, but DENIES the
motion to add the punitive damages demand to the negligence claim.
BACKGROUND
Plaintiff filed this action in November 2012, alleging claims against
Defendants for actions she alleges occurred while her husband was in the custody

of the Shawnee County Department of Corrections and which, she claims, resulted
in her husband’s death. An Amended Complaint was filed early in the case
(December 3, 2012) before answers were filed. (Doc. 4.)
All of the Defendants remaining in the case, except Defendant Corizon
Heath, Inc., are governmental Defendants, or individuals in positions with
governmental Defendants. In her Amended Complaint (Doc. 4), Plaintiff alleged
claims against the governmental Defendants under 18 U.S.C. § 1983 and the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution for deliberate indifference to Decedent’s medical needs, excessive
force, and other due process claims. She also alleged negligence, negligent
supervision and training, assault and battery, false arrest and imprisonment, and
outrage against the government Defendants. Count IX alleged negligent failure to
supervise Corizon (called PHS in that Complaint). That claim alleged that the
failure of the governmental Defendants to supervise Corizon was “wanton,
malicious, evil, oppressive, or involved reckless indifference to the federally
protected rights of Decedent, thus entitling Plaintiffs to an award of punitive
damages.” (Doc. 4, at ¶ 156.)
In Counts XV and XVI, Plaintiff alleged causes of action against Corizon for
negligence and failure to supervise, claiming that specific and systemic failures
2

lead to Decedent’s death. (Doc. 4, at 36-38.) These Counts, the only ones
specifically aimed at Corizon in the Amended Complaint, alleged entitlement to
damages but did not include claims for punitive or exemplary damages. Corizon
was an included Defendant in the wrongful death and survival actions based
negligence. The final summary request for relief includes a demand for actual and
punitive damages (Id., at 41.)
From January through March of 2013, the parties litigated Motions to
Dismiss, which were resolved on April 17, 2013, by District Court Judge
Lungstrum. That ruling resulted in the dismissal of some claims and parties. The
order did not, however, affect the claims against Corizon. The order resulted in
leave being granted to Plaintiff to amend certain claims. (Doc. 75.)
A Second Amended Complaint was filed on May 3, 2013, against the
remaining Defendants. (Doc. 76.) That pleading alleges in part that the County
contracted with Corizon to provide medical care to inmates (Doc 76, at ¶ 17);
Decedent was arrested on December 2, 2010, and taken to the Shawnee County
Department of Corrections for detention (¶¶ 27-28); during his arrest and
detention, Decedent exhibited behavior indicative of mental illness and that
officers requested that he be evaluated (¶¶ 27-32, 39-40, 48-49, 73); that requests
from family, and a State District Court Judge, for evaluations were ignored (¶¶ 373

38); that Corizon nurses failed to recognize, or ignored, Decedent’s need for health
services and failed to request services or initiate medical intervention (¶¶ 43, 46,
50, 56-57, 60, 67); and Decedent was not provided adequate medical treatment for
his mental or physical health.
Count I of the Second Amended Complaint, the current effective pleading, is
a claim under §1983 for deliberate indifference to Decedent’s medical and mental
heath needs, in violation of the Fourteenth Amendment, against the governmental
Defendants, alleging entitlement to punitive damages. (Doc. 76, at 19.) In support
of this claim, Plaintiffs allege that although Decedent exhibited “strong signs of
deteriorating physical and mental health and was in a state of psychosis,” the
“Defendants disregarded” the risk and were “deliberately indifferent” to
Decedent’s needs by failing to provide “adequate medical treatment.” (Id., at ¶¶ 95,
96, 97).
Count III is a claim under §1983 against the governmental Defendants
alleging the failure to implement or avoid practices and policies that resulted in the
other constitutional claims. (Id., at 22.) Plaintiff alleged in this regard:
The failure of Defendants to affirmatively act in the face
of policies, procedures, practices, and usages which
resulted in constitutionally violative conduct established
a policy to condone and otherwise tolerate
constitutionally violative conduct in general and
specifically, the constitutionally violative conduct alleged
4

herein. Had Defendants affirmatively acted to establish
hiring, training, supervision, and retention policies,
procedures, practices, or usages which were
reasonably calculated to assure that officers were
properly hired, trained, supervised, and retained or
dismissed, the constitutional deprivation suffered by
Decedent would not have occurred.
(Id., at ¶ 126.) No punitive damages allegations are included in Count III.
Count IV alleges a state law negligence action against the County and
related Defendants for failing to provide medical treatment and failure to protect
Decedent from self-inflicted harm. (Id., at 25.) In this negligence count, Plaintiff
alleges entitlement to punitive damages. Similarly, Counts V and VI alleges state
law negligence actions against the County and some related Defendants for
negligent supervision and training of “officers under their supervision” or officers
they were “assigned to train.” (Id., at 27-29.) These counts also allege entitlement
to punitive damages.
Count VII alleges the state law tort of outrage against the County, claiming
that the conduct of the County Defendants was “extreme, outrageous, beyond the
bounds of decency, and utterly intolerable in a civilized community.” (Id., at
¶153.) The count claims that the County Defendants acted intentionally or in
reckless disregard of Decedent. (Id.) The claim requests punitive damages. (Id.,

5

at 158.) In Count X, Plaintiff alleges that the County failed to supervise Corizon.
(Id., at 33-34.) No request for punitive damages is included.
In Count IX, Plaintiff makes her claim against Corizon (called PHS in the
Amended Complaint). (Id., at 31-25.) That count states a state law claim for
medical negligence. Although this count includes a demand for relief, no punitive
damages are claimed.
The final prayer for relief summarizes all previous demands against the
Defendants. (Id., at 37.) It includes a claim for punitive damages. (Id.)
The undersigned Magistrate Judge conducted the first Scheduling
Conference on June 4, 2013. That conference resulted in the issuance of a
Scheduling Order on June 7, 2013, which established a deadline to complete
discovery by May 16, 2014. (Doc. 94.) July 22, 2013, was set as the deadline to
file motions to amend the pleadings. (Id.)
Since the entry of the Scheduling Order, the parties have engaged in a great
deal of discovery. Throughout the summer and fall of 2013, and early this year,
the parties exchanged written discovery and have taken at least 37 depositions.
Plaintiff’s expert disclosures have been made and experts deposed. The parties
litigated a contested discovery matter and litigated another Motion to Dismiss.

6

On February 20, 2014, Plaintiff filed the present motion, seeking to file a
Third Amended Complaint (Doc. 294; Doc. 294-11). This revised pleading makes
additional factual claims against Corizon, including allegations concerning
Corizon’s “custom and practice.” It also adds a claim that “other deaths and
accreditation citations” at the county facility demonstrate a “pattern and practice of
failing to provide timely and adequate medical screenings.” The proposed Third
Amended Complaint then adds Corizon to the constitutional claims in Count I
(deliberate indifference) and Count III (practices and policies), which include
punitive damages claims. The proposed amendment also adds a claim for punitive
damages against Corizon in Count IX, the negligence claim.
DISCUSSION
Federal Rule of Civil Procedure 15(a) provides, in pertinent part, that “a
party may amend its pleading only with the opposing party’s written consent or the
court’s leave.” In the absence of any apparent or declared reason, such as undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure
to cure deficiencies by amendments previously allowed, or futility of amendment,
leave to amend should be freely given, as required by the federal rule. Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A court is justified in denying a
7

motion to amend as futile if the proposed amendment could not withstand a motion
to dismiss or otherwise fails to state a claim. Ketchum v. Cruz, 961 F.2d 916, 920
(10th Cir. 1992); see 6 Wright, Miller & Kane, FEDERAL PRACTICE AND
PROCEDURE § 1487 at 642 (1990).
When, as in this case, the deadline for amending pleadings has passed,
Fed.R.Civ.P. (16)(b)(4) is implicated, which provides that the scheduling order
“may be modified only for good cause and with the judge’s consent.” Denmon v.
Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993). This District applies a two-step
analysis based on Rule 16(b) and Rule 15(a) when deciding a motion to amend a
complaint filed past the scheduling order deadline. Camp v. Gregory, Inc., 121083-EFM-KGG, 2013 WL 391172 (D. Kan. Jan. 30, 2013). First the Court will
determine whether the moving party has established “good cause” for filing the
motion out of time. If good cause is established, the Court will apply the more
permissive Rule 15(a) standard.
To establish good cause under Rule 16(b)(4), “the moving party must show
that the amendment deadline could not have been met even if it had acted with due
diligence.” Id. A district court’s determination as to whether a party has
established good cause sufficient to modify a scheduling order amendment

8

deadline is within the Court’s discretion, and will be reviewed only for an abuse of
discretion. Id.
Likewise, the ultimate decision whether to allow a proposed amendment
under Rule 15 lies within the sound discretion of the court. “In exercising its
discretion, the court must keep in mind that the Federal Rules of Civil Procedure
are designed to facilitate decisions on the merits rather than on pleading
technicalities. Indeed, the Tenth Circuit has recognized that Rule 15 is
intended “to provide litigants ‘the maximum opportunity for each claim to be
decided on its merits rather than on procedural niceties.’” Id. (quoting Carefusion
213, LLC v. Professional Disposables, Inc., No. 09-2616-KHV-DJW, 2010 WL
4004874, at *4 (D. Kan. Oct. 12, 2010)).
The first question is, therefore, whether the present motion is out of time, or
whether the Plaintiff could have met the amendment deadline set forth in the order
with due diligence. Plaintiff states that she has been “judicious” in bringing
claims against Defendants, and that the ability to bring a plausible §1983 claim
against Corizon has “only become clear in recent months.” (Doc. 294, at 12.)
While acknowledging that the law allows a §1983 claim against a private
entity performing a governmental function, Plaintiff claims that only through
recent discovery has she learned that Corizon had a policy or practice that was
9

deliberately indifferent to Decedent’s medical needs and violated his constitutional
rights. She contends that showing a policy and practice is legally critical to her
constitutional claim against Corizon. Plaintiff admits that “systemic failures in the
delivery of healthcare to inmates” have been evident throughout the case.
However, she urges that only discovery through recent depositions and the
production of NCCHC accreditation reports and Mortality Reviews, produced in
discovery early this year, have shown Corizon’s policies, customs and practices to
be the “root cause” of the systemic failures. (Doc. 294, at 13-14.)
Plaintiff points to the significance of two other inmate deaths discussed in
the Mortality Review in 2003 and 2009 as new information. While Plaintiff does
not claim the fact of these incidents was previously unknown, she claims that
issues concerning those incidents were revealed by the 2003 screening reviews.
(Doc. 294, at 9.)
Plaintiff contends that the deposition of Corizon Administrator Marsh, taken
in February of 2014, is the event that “solidified” the basis for the §1983 claim
because that witness revealed a policy to refuse medical treatment to inmates who
fail to request treatment regardless of their mental condition. (Doc. 328, at 2, 5.)
Defendant argues that Plaintiff did not request that deposition until January 2014.
Plaintiff responds that the request for deposition was delayed by Corizon’s delay in
10

producing documents, which were ultimately ordered produced by the Court.
(Doc. 328.) That Order (Doc. 204) required the production of the Mortality
Review and documents relating to other inmates who “died at or within 72 hours of
being released” from the facility. Plaintiff also claims that the deposition of
Administrator Marsh was delayed until the full accreditation reports were obtained
on January 27, 2014.
As to the request to add a punitive damages claim to her state law negligence
count, Plaintiff states that claim is based on facts originally plead and those
recently discovered. Plaintiff describes this request as a clarification, pointing out
that although the claim is not made in the operative Count of her current complaint,
the final summary prayer for relief in the Second Amended Complaint includes the
punitive damages request against all Defendants.
Defendant Corizon disputes Plaintiff’s claim that she could not have made
the §1983 claim within the deadline to amend pleadings. Corizon cites Plaintiff’s
response to a Motion to Dismiss the §1983 claims against the County. In that
pleading, filed on February 18, 2013, Plaintiff averred that the Second Amended
Complaint cited sufficient facts to “raise an inference that there is a widespread and
well-settled practice of ignoring the medical needs of mentally ill inmates.” (Doc.
53.) Plaintiff further stated that the facts stated at that time raised a “clear
11

inference that [the County] systematically disregards the mental health needs of
inmates, even when those needs are as serious as Mr. Aguirre’s.” (Id.) Corizon
also cites discovery from early in the case that supported the claimed deficiencies
regarding Decedent’s treatment and evaluation by Corizon.
As to the central claims concerning Corizon policies, Defendant states that it
produced policies in discovery, although Corizon does not claim that a written
policy revealed what Plaintiff now alleges as a policy to deny unrequested
treatment regardless of an inmate’s mental condition. Corizon argues that Plaintiff
had a duty to investigate her claims earlier, and should not have waited until
January of 2014 to request the deposition of the Corizon Administrator Marsh.
Defendant also points out that the inmate deaths in 2003 and 2009 were revealed in
discovery on July 9, 2013, and that those were the subject of publically-filed
actions. Regarding the accreditation reports, Corizon states that although the
complete survey was not produced until 2014, the “finding at issue” (the deficiency
cited by the Plaintiff, Doc. 294, at 8) was produced on June 28, 2013.
The deadlines set by the Court in its Scheduling Orders are not merely
aspirational. Rather, the orderly, timely and efficient management of litigation by
the Court and counsel is important to the administration of justice. See
Fed.R.Civ.P. 1. Tardy substantive amendments are unfair, and can cause
12

substantial delay and expense. Thus, actions beyond those deadlines are only
allowed for good cause.
It is equally important that parties be permitted to amend and adjust claims
based on evidence discovered during the discovery phase of the litigation. The
Court is loathe to impose a rigid examination of a party’s strategies in a way that
might force a claim before that claim is supported by adequate evidence.
Whether or not Plaintiff could have maintained an action against Corizon
earlier in the case for alleged systematic flaws in providing health care to inmates,
the Court accepts that evidence adduced from the deposition of Administrator
Marsh, which allegedly pinpointed a particular Corizon policy, is important to
Plaintiff’s §1983 theory against Corizon and that this evidence was recently
discovered. Discovery in this case has been extensive, and the parties have been
diligently completing discovery. The delay in taking Administrator Marsh’s
deposition until after the resolution of disputes concerning the production of paper
discovery (whether or not that discovery yielded important facts) was not
unreasonable. Under these facts, the Court finds that the filing of the present
motion at this juncture did not result from a lack of diligence and that the
amendment based on the theory claimed could not have been made before the

13

deadline. Plaintiff has demonstrated good cause for filing the motion beyond the
deadline.
The same cannot be said for the motion to add the punitive damages claim to
the negligence action against Corizon. The Court does not agree that the Second
Amended Complaint’s inclusion of that claim in the final summary request for
relief notified Corizon that it was facing that claim on the negligence Count. There
is a specific request for relief associated with that Count in the present Complaint
and Plaintiff has added no facts or allegation in that Count to support that claim.
Plaintiff’s claim that discovery has enhanced that claim does not excuse the failure
to make the claim before the deadline when the claim is clearly based on
originally-plead facts. Plaintiff has not shown good cause to amend that claim
beyond the deadline to amend.
Having found good cause for the timing of the present motion regarding the
§1983 claims, the next question is whether the amendment should be permitted
under Rule 15. Defendant’s primary opposition in that regard is its claim that the
amendment is futile, because the claim will not relate back to the filing of the
Complaint and thus fail under the applicable statute of limitation. The Court
disagrees. The action against Corizon is based on a claim that it provided
insufficient medical care to Decedent, resulting in his death. Whether the claim is
14

based on negligence, or based on a claim of deliberate indifference under §1983,
the amendment asserts a claim arising out of the “conduct, transaction or
occurrence” originally alleged. Coit v. Zavaras, 280 F. App’x 791, 794 (10th Cir.
2008). The proposed amendment is not futile.
Plaintiff’s motion to amend is, therefore, GRANTED in part and DENIED
in part. Plaintiff shall file her Third Amended Complaint (without the punitive
damages amendment to the negligence count) on or before May 27, 2014.
IT IS SO ORDERED.
Dated this 23rd day of May, 2014.
S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge

15