MALENKO v. ANDERSON

Filing 15

ORDER ON MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT denying 11 Motion for Leave to File By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
IGOR MALENKO, et al.
Plaintiffs,
v.
STEPHANIE ANDERSON, as District
Attorney for Cumberland County,
Defendant.

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ORDER ON MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Before the Court is Plaintiffs’ Motion for Leave to File Second Amended Complaint
(ECF No. 11). The Court DENIES Plaintiffs’ Motion because it is futile.

I.

LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 15(a)(2), the Court “should freely give leave [to amend] when

justice so requires.” Accordingly, leave to amend should be granted where there is no “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….” Foman v. Davis, 371 U.S. 178, 182 (1962); see
also Chiang v. Skeirik, 582 F.3d 238, 244 (1st Cir. 2009). If leave to amend is sought before
discovery is complete and neither party has moved for summary judgment, “futility” is gauged
by the criteria of Rule 12(b)(6). See Hatch v. Dept. for Children Youth and Their Families, 274
F.3d 12, 19 (1st Cir. 2001).
To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570
(2007)). In considering the merits of a motion to dismiss, the Court must accept as true all wellpleaded factual allegations in the complaint and draw all reasonable inferences in Plaintiff’s
favor. Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). The Court
must examine the factual content of the complaint and determine whether those facts support a
reasonable inference “that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
678. The complaint must “contain sufficient factual matter … to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. 678 (quoting Twombly, 555 U.S. at 570) (internal
quotations omitted). The complaint must include “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “If the
factual allegations in the complaint are too meager, vague, or conclusory to remove the
possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.”
Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (internal citations omitted).

II.

DISCUSSION
On February 14, 2012, Plaintiff Igor Malenko filed an Amended Complaint on behalf of

himself and his minor child (“M.M.”) against Defendant Cumberland County District Attorney
Stephanie Anderson, alleging that Anderson violated his constitutional rights under the color of
state law. (See Amended Complaint and Demand for Jury Trial (ECF No. 5).) On February 29,
2012, Anderson moved to dismiss the Amended Complaint, contending that she was entitled to
qualified immunity and that Malenko had failed to state a claim under § 1983. (See Motion to
Dismiss (ECF No. 7).) Less than one month after filing his Amended Complaint, Malenko
learned of additional facts, which he discovered on a website maintained by his ex-wife (and

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M.M.’s mother) Lori Handrahan.1 Shortly thereafter, on March 15, 2012, Plaintiff filed the
instant motion, seeking leave to file a Second Amended Complaint, which incorporated the
newly discovered facts. Accepting as true all facts set forth in Plaintiff’s proposed Second
Amended Complaint for the purpose of the instant motion, the Court holds that Plaintiff’s motion
is futile. As set forth in the Court’s Order on Motion to Dismiss (ECF No. 14), Defendant
Anderson is entitled to qualified immunity and the additional facts set forth by Plaintiff in his
proposed Second Amended Complaint do not change the Court’s qualified immunity analysis in
any way. The Court would also alternatively find that even with the additional facts contained in
Plaintiff’s Second Amended Complaint, Plaintiff still fails to state a claim under § 1983 for the
reasons stated in the Court’s Order on Motion to Dismiss.

III.

CONCLUSION
For the reasons stated herein, the Court ORDERS that Plaintiff’s Motion for Leave to

File Second Amended Complaint (ECF No. 11) is DENIED.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 23rd day of May, 2012.

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See the Court’s Order on Motion to Dismiss (ECF. No. 14) for a discussion of Handrahan’s website.

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