Flores (ID 6012471) v. Nickelson
Filing
78
ORDER granting 68 Motion for Leave to Amend Complaint. Signed by Magistrate Judge James P. O'Hara on 6/1/2018. (srj)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JULIAN FLORES,
Plaintiff,
v.
Case No. 16-3022-JAR
TRAVIS NICKELSON,
Defendant.
ORDER
Plaintiff, a former state inmate, brings this civil-rights action pursuant to 42 U.S.C.
§ 1983. He alleges deliberate indifference in violation of the Eighth Amendment arising
from a groin injury he suffered while incarcerated at the El Dorado Correctional Facility
in El Dorado, Kansas. Plaintiff now seeks leave to amend his complaint to add a
medical-malpractice claim against defendant Travis Nickelson, and also to assert a thirdparty beneficiary breach of contract claim against former defendant Corizon Health
(“Corizon”) (ECF No. 68). For the reasons set forth below, the motion is granted.1
I.
Background
Plaintiff filed his original complaint, pro se, on January 21, 2016, against
defendant Nickelson.2 The complaint alleged that Nickelson is an APRN (i.e., advanced
practice registered nurse) employed by Corizon Correctional Healthcare, a contract
The court need not here address plaintiff’s request that his medical-malpractice
claim relate back to the date of his original pleading. Although it appears the claim
plainly relates back to the original complaint, defendant Nickelson does not oppose the
motion to amend as futile based on the applicable statute of limitations.
1
2
ECF No. 1.
1
healthcare provider for the Kansas Department of Corrections. Plaintiff alleged that
Nickelson treated him with deliberate indifference after he suffered a groin injury on
February 24, 2014.
On October 19, 2016, plaintiff sought leave to amend his complaint to name three
additional defendants: Corizon Health, C. Gordon Harrod, M.D., and Deanna R. Morris,
LPN.3 Plaintiff’s motion was granted on July 28, 2017, and plaintiff filed his amended
complaint the same day.4 Defendants Corizon Health, Harrod, and Morris filed a joint
motion to dismiss the claims asserted against them for the first time in the amended
complaint as time-barred by the applicable statute of limitations.5 On January 17, 2018,
the presiding U.S. District Judge, Julie A. Robinson, granted that motion to dismiss.6
Plaintiff thereafter retained counsel and, on March 22, 2018, the undersigned U.S.
Magistrate Judge, James P. O’Hara, conducted a telephone scheduling conference with
the parties. The court subsequently entered a scheduling order, setting April 19, 2018 as
the deadline for filing any further motion to amend the pleadings.7
On April 6, 2018, plaintiff filed the instant motion for leave to file a second
amended complaint. As previously indicated, plaintiff seeks leave to assert a medicalmalpractice claim against Nickelson, and to assert a third-party beneficiary breach of
3
ECF No. 16.
4
ECF Nos. 24 and 25.
5
ECF No. 34.
6
ECF No. 51.
7
ECF No. 62.
2
contract claim against former defendant Corizon. The court addresses each in turn.
II.
Analysis
Under Fed. R. Civ. P. 15(a)(2), once a responsive pleading has been filed and
twenty-one days have passed, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Rule 15 dictates the court “should freely
give leave when justice so requires.”8 Although the granting of a motion to amend is
within the court’s discretion, the Supreme Court has indicated that Rule 15’s directive to
“freely give leave” is a “mandate … to be headed.”9 Nonetheless, a court may deny leave
to amend 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.”10
Medical-Malpractice Claim
Nickelson opposes plaintiff’s amendment on the basis of undue prejudice, arguing
that he’s been preparing his defense for more than two years “based upon the high
standard of deliberate indifference and its intensified focus on Nurse Nickelson’s own
subjectivity and mental state.”11 Nickelson claims he would have investigated a state
malpractice claim and pursued discovery in a different manner, had such a claim been
8
Fed. R. Civ. P. 15(a)(2).
9
Foman v. Davis, 371 U.S. 178, 182 (1962).
10
Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010) (quoting Duncan v.
Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir.
2005)).
11
ECF No. 71 at 7.
3
properly raised two years ago.
The Tenth Circuit has determined that prejudice to the non-moving party is the
most important factor in deciding a motion to amend the pleadings.12 “Courts typically
find prejudice only when the amendment unfairly affects the defendants ‘in terms of
preparing their defense to the amendment.’”13
This occurs, most often, “when the
amended claims arise out of a subject matter different from what was set forth in the
complaint and raise significant new factual issues.”14 Nickelson, as the party opposing
the amendment, has the burden of showing prejudice.15
The court finds Nickelson’s prejudice assertions insufficient to deny the motion to
amend. Although the medical-malpractice and deliberate-indifferent claims are subject to
different elements of proof, both claims arise from identical facts. The court notes the
affirmative defenses contained in Nickelson’s responsive pleading specifically address
“any negligence claims asserted against [Nickelson]” and allege that in treating plaintiff,
Nickelson “exercised the same degree of care, skill and diligence as other physicians and
nursing staff would have exercised under similar circumstances.”16 Defendant hasn’t
sufficiently demonstrated the different type of investigation or discovery he would have
12
Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006).
13
Id. at 1208 (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)).
14
Id.
15
Layne Christensen Co. v. Bro-Tech Corp., No. 09-2381-JWL, 2011 WL
3847076, at *4 (D. Kan. Aug. 29, 2011).
16
ECF No. 9.
4
undertaken had the medical-malpractice claim been asserted in the initial complaint,
much less made any non-speculative showing that he can no longer conduct such
investigation or discovery.
The court further observes that plaintiff filed his motion to amend within the
scheduling-order deadline. No discovery has been conducted to date, with the exceptions
of Rule 26(a) initial disclosures and Nickelson’s recently-served first interrogatories and
requests for production of documents.17 In light of the foregoing, the court finds any
delay or prejudice insufficient to deny plaintiff’s motion.
Breach of Contract Claim
Corizon argues plaintiff’s proposed breach of contract claim should be barred
consistent with the principles of finality and res judicata.
Corizon claims plaintiff
opposed its motion to dismiss, in part, by arguing that plaintiff “was actually bringing a
breach of contract claim against Corizon and that such a claim would not be subject to the
same statute of limitations as a deliberate indifference claim.”18 Corizon asserts that
because the court’s January 17, 2018 order didn’t specify whether Corizon’s dismissal
was “with prejudice” or “without prejudice,” the order operates as “an adjudication on the
merits” under Fed. R .Civ. P. 41(b).
Even assuming Corizon’s standing to oppose plaintiff’s motion to amend, or
17
ECF No. 76.
18
ECF No. 71 at 2.
5
Nickelson’s standing to assert futility on behalf of Corizon,19 the court, in its discretion,
declines to deny plaintiff’s motion to amend on the basis of futility. Based on the instant
briefing, the court instead defers consideration of the futility arguments to Judge
Robinson, if and when Corizon files a motion to dismiss the second amended complaint.
Insofar as Corizon separately asserts that it will be unduly prejudiced by the
“extensive investigation, … drastic shift in strategy, and additional discovery and motion
work” necessitated by the amendment,20 the court finds the conclusory assertions
insufficient to deny plaintiff’s motion.
In any event, any prejudice Corizon might
otherwise suffer can largely be eliminated by re-setting existing deadlines and settings
after Corizon is re-served with process. The court permits this relief below.
IT IS THEREFORE ORDERED that plaintiff’s motion to file a second amended
complaint is granted. By June 5, 2018, plaintiff shall file his second amended complaint
as a separate docket entry.
IT IS FURTHER ORDERED that all pending deadlines and settings are vacated,
to allow time for any review by the Honorable Judge Robinson, for Corizon to be reserved with process (if defense counsel’s not able or willing to waive or accept service of
process), and for Corizon to be heard on how the new claims would impact discovery.
IT IS FURTHER ORDERED that this matter is set for a telephone status
19
See Coleman v. Apple Eight Hospitality Mgmt., Inc., No. 16-1343-JTM, 2017
WL 1836974, at *3 (D. Kan. May 8, 2017) (“Current parties unaffected by a proposed
amendment do not have standing to assert claims of futility on behalf of proposed
defendants”) and Silva v. Ekis, No. 15-3007, 2017 WL 5465531, at *1 (D. Kan. Nov. 14,
2017) (same).
20
ECF No. 71 at 8.
6
conference on July 9, 2018, at 9:00 a.m. The parties are directed to call the conference
line at 1-888-363-4749 and use access code 8914911 to join the conference.
Dated June 1, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge
7
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