DREWRY v. CORRECT CARE SOLUTIONS et al

Filing 216

ORDER granting in part and denying in part 156 Motion to Amend. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRANDON B. DREWRY,
Plaintiff
v.
CORRECT CARE SOLUTIONS,
Defendant

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1:14-cv-00392-GZS

ORDER GRANTING IN PART MOTION TO AMEND
The matter is before the Court on Plaintiff’s Motion to Amend and Proposed Amendments.
(ECF No. 156.)1 Through his motion, Plaintiff requests leave to proceed with his claim against
Defendants Robin Cross-Snell and Dr. Webster, without filing a comprehensive amended
complaint. In addition, Plaintiff requests leave to supplement his pleadings to assert or modify his
plea for relief. Plaintiff’s motion is granted in part.
Background
Plaintiff’s original complaint (ECF No. 1), filed October 3, 2014, did not include
Defendants Cross-Snell or Webster among the named defendants. On September 28, 2015, the
Court granted Plaintiff’s request to amend his pleadings to assert claims against Defendants CrossSnell and Webster. (ECF No. 95, ¶ 5 (“It is hereby ORDERED that Plaintiff’s Supplemental
Pleading (ECF No. 68) is GRANTED to permit his claim against Robin Cross-Snell.”) & ¶ 7 (“It
is hereby ORDERED that Plaintiff’s Supplemental Pleading (ECF No. 84) by which he reasserts
his request to join Dr. Webster as a Defendant (ECF No. 33) is hereby GRANTED.”).)

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The Electronic Case Files (ECF) number is a reference to the docket entry number assigned to filings on the case
docket.
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On September 29, 2015, following entry of the Court’s order granting Plaintiff’s request to
amend his complaint (ECF No. 95), the clerk made the following internal notation on the docket:
“Copies mailed to BRANDON B DREWRY re Orders 94 and 95. Also sent [Notice of Electronic
Filing] of #95 with instructions to file amended complaint highlighted.”
Because Plaintiff did not file an amended complaint, on October 28, 2015, the Court
ordered Plaintiff to show cause why he had not filed an amended complaint. (Order to Show
Cause, ECF No. 112.) In response, Plaintiff maintained the Court’s order (ECF No. 95) did not
require the filing of an amended complaint. (Response to Order to Show Cause, ECF No. 114.)
On November 16, 2015, the Court ordered Plaintiff to file an amended complaint “to establish one
pleading that includes all of Plaintiff’s claims, and that will govern the future course of the case.”
The order was consistent with the ordinary practice governing motions to amend (i.e., that there
be a proposed, comprehensive amended complaint setting forth all of Plaintiff’s claims). (Order
on Renewed Motion for Documents and Order to Show Cause, ECF No. 115.) Subsequently, in
various filings, Plaintiff has argued that he has had and continues to have difficulties accessing
copies of his important case filings, including his original complaint, and that it is difficult for him
to use the available records and resources to produce a new amended complaint asserting all of the
allegations set forth in his prior pleadings. (See, e.g., Motion to Stay, ECF No. 155.)
Through his current motion, Plaintiff in essence requests leave to proceed on his claim
against Defendants Cross-Snell and Webster without filing a new comprehensive pleading. In
addition, Plaintiff seeks leave to amend the substance of his existing complaint.
Discussion
This Court recently addressed the issues relevant to a court’s assessment and management
of amended pleadings filed by pro se litigants:

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Typically, an amended complaint replaces an original complaint in its entirety,
and claims that appear only in the original are treated as abandoned. See Kolling v.
American Power Conversion Corp., 347 F.3d 11, 16 (1st Cir. 2003). However, a
pleading may adopt by reference statements that appear in other pleadings. Fed. R.
Civ. P. 10(c). A plaintiff who wishes to incorporate an original complaint into an
amended complaint in this manner is required “to plead the claim with sufficient
specificity” to make a defendant aware that an additional claim has been asserted.
Kolling, 347 F .3d at 17.
Against this backdrop, the Federal Rules of Civil Procedure require that
pleadings be construed “so as to do justice.” Fed. R. Civ. P. 8(e). While
unrepresented litigants “are not exempt from procedural rules, [the court holds] pro
se pleadings to less demanding standards than those drafted by lawyers and
endeavors, within reasonable limits, to guard against the loss of pro se claims due
to technical defects.” Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008); see also
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se complaints are to be “liberally
construed”) (internal quotations and citations omitted).
Doyle v. Falmouth Police Dep’t, No. 2:14-CV-259-JDL, 2015 WL 470715, at *2, 2015 U.S. Dist.
LEXIS 12994, at *5 – *6 (D. Me. Feb. 4, 2015, Levy, J.).
Given this understandable approach to amendments filed by pro se litigants, insofar
Plaintiff’s prior pleadings (ECF Nos. 33, 44, 68, 84) provide Defendants Cross-Snell and Webster
with notice of the factual basis of Plaintiff’s claims, the Court will permit Plaintiff to incorporate
his claims against Defendants Cross-Snell and Webster into the operative complaint. To the extent
Plaintiff seeks to modify or supplement any of the substantive claims he has asserted to this point,
given the length of time this matter has been pending and given that the discovery period has
expired, the Court denies Plaintiff’s request.
Conclusion
Based on the foregoing analysis, the Plaintiff’s Motion to Amend and Proposed
Amendments (ECF No. 156) is granted in part and denied in part. Plaintiff’s claims against
Defendants Cross-Snell and Webster are incorporated into Plaintiff’s operative complaint. Service
of pleadings filed at ECF Nos. 1, 33, 44, 68 and 84 upon Defendants Cross-Snell and Webster is

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authorized. Counsel for Defendants shall notify the Court within 10 days whether they are
authorized to accept service on behalf of Defendants Cross-Snell and Webster. In the event
counsel is not authorized to accept service, the pleadings shall be forwarded to the U.S. Marshal
for service. Plaintiff’s motion is otherwise denied.
NOTICE
Any objections to this order shall be filed in accordance with Fed. R. Civ. P. 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 28th day of November, 2016

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