Flores (ID 6012471) v. Nickelson

Filing 24

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion to amend the complaint 16 is granted and the clerk is directed to file the proposed amended complaint. The clerk's office shall issue waiver of service of summons forms, Fed. R. Civ. P. 4 (d), to each new defendant at no cost to plaintiff absent a showing that plaintiff is able to pay the cost for such service. Defendant's motion for leave to file out of time his suggestions in opposition to plaintiff's motion to amend the complaint 18 is denied. The following motions of plaintiff are denied as moot: (1) Motion for Extension of Time 10 ; (2) Motion for Copies of Martinez Report, Affidavits and Documents 11 ); (3) Second Motion for Extension of Time 13 ; (4) Motion for Extension of Time 19 ; and (5) Motion for Extension of Time 20 . Signed by Magistrate Judge David J. Waxse on 07/28/17. Mailed to pro se party Julian Flores by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JULIAN FLORES,
Petitioner,
v.

CASE NO. 16-3022-SAC

TRAVIS NICKELSON,
Respondent.
MEMORANDUM AND ORDER
On January 21, 2016, plaintiff, a prisoner confined at the El Dorado Correctional Facility
in El Dorado, Kansas, filed this pro se civil complaint under 42 U.S.C. § 1983, alleging that the
defendant improperly withheld medical care from plaintiff during his confinement. This matter
is before the court on the following motions: (1) plaintiff’s Motion for Extension of Time (Doc.
#10); (2) plaintiff’s Motion for Copies of Martinez Report, Affidavits and Documents (Doc.
#11); (3) plaintiff’s Second Motion for Extension of Time (Doc. #13); (4) plaintiff’s Motion to
Amend Complaint (Doc. #16); (5) defendant’s Motion for Leave to File Out of Time
Suggestions in Opposition to Plaintiff’s Motion for Leave to Amend Complaint (Doc. #18); (6)
plaintiff’s Motion for Extension of Time (Doc. #19); and (7) plaintiff’s Motion for Extension of
Time (Doc. #20).
The court has reviewed and finds the following motions of plaintiff should be denied as
moot: (1) Motion for Extension of Time (Doc. #10); (2) Motion for Copies of Martinez Report,
Affidavits and Documents (Doc. #11); (3) Second Motion for Extension of Time (Doc. #13); (4)
Motion for Extension of Time (Doc. #19); and (5) Motion for Extension of Time (Doc. #20).
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Plaintiff’s Motion for Leave to Amend the Complaint (Doc. #16) and
Defendant’s Motion for Leave to File Out of Time Suggestions in Opposition to Plaintiff’s
Motion to Amend Complaint (Doc. #18)
Plaintiff seeks to amend the complaint to name three additional defendants, and to refine
the allegations as to each defendant. Fed. R. Civ. P. 15 governs amendments to pleadings
generally. Except when an amendment is pleaded as a “matter of course,” as defined by the rule,
“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). Courts must “freely give leave when justice so requires.” Id.
“Refusing leave to amend is generally only justified upon a showing of 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.” Frank v. U.S. W., Inc., 3 F.3d 1357,
1365 (10th Cir. 1993).
Prejudice to the non-moving party is the most important factor in deciding a motion to
amend the pleadings. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). “Rule
15 . . . was designed to facilitate the amendment of pleadings except where prejudice to the
opposing party would result.” Id. (quoting United States v. Hougham, 364 U.S. 310, 316, 81
S.Ct. 13, 5 L.Ed.2d 8 (1960). Courts will typically only find prejudice when an amendment
unfairly affects non-movants “‘in terms of preparing their [response] to the amendment.’”
“However, the expenditure of time, money, and effort alone is not grounds for a finding of
prejudice.”
Plaintiff’s proposed amendments simply clarify the original claim and raise no
“significant new factual issues” arising from “a subject matter different than that which was set
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forth in the original complaint.” See Minter, 451 F.3d at 1208.

As such, the proposed

amendments do not unfairly prejudice defendant. Accordingly, plaintiff’s motion for leave to
amend is granted and the Clerk is hereby directed to file plaintiff’s proposed Amended
Complaint.
Finally, defendant’s motion for leave to file out of time his suggestions in opposition to
plaintiff’s motion to amend the complaint is not well-taken. First, lead counsel for defendant
alleges no specific facts to show excusable neglect for the delay in filing, as required by Quigley
v. Rosenthal, 427 F.3d 1232, 1238 (10th Cir. 2005). Moreover, defendant lacks standing to assert
a futility claim on behalf of the proposed defendants, which is the basis of defendant’s proposed
suggestions in opposition. Coleman v. Apple Eight Hospitality Mgmt., Inc., 2017 WL 1836974,
at *2-3 (D. Kan., May 8, 2017). The court therefire denies defendant’s motion.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s motion to amend
the complaint (Doc. #16) is granted and the clerk is directed to file the proposed amended
complaint.
IT IS FURTHER ORDERED that the clerk’s office issue waiver of service of summons
forms, Fed. R. Civ. P. 4(d), to each new defendant at no cost to plaintiff absent a showing that
plaintiff is able to pay the cost for such service.
IT IS FURTHER ORDERED that defendant’s motion for leave to file out of time his
suggestions in opposition to plaintiff’s motion to amend the complaint (Doc. #18) is denied.
IT IS FURTHER ORDERED that the following motions of plaintiff are denied as
moot: (1) Motion for Extension of Time (Doc. #10); (2) Motion for Copies of Martinez Report,

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Affidavits and Documents (Doc. #11); (3) Second Motion for Extension of Time (Doc. #13); (4)
Motion for Extension of Time (Doc. #19); and (5) Motion for Extension of Time (Doc. #20).

IT IS SO ORDERED.
Dated this 28th day of July 2017, in Kansas City, Kansas.
s/ David J. Waxse_____________
David J. Waxse
U.S. Magistrate Judge

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