Cross v. MHM Correctional Services, Inc. et al

Filing 109

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion for Leave of Court for Plaintiff to File his Fourth Amended Complaint (ECF No. 74) is DENIED. IT IS FURTHER ORDERED that Plaintiffs Amended Motion for Leave to File a Fourth Amended C omplaint (ECF No. 93) is DENIED. IT IS FURTHER ORDERED that Plaintiffs Second Amended Motion for Leave to File his Fourth Amended Complaint or in the Alternative, to Quash the Third Amended Complaint, and Strike it from the Record and Grant Plainti ff Leave to Refile (ECF No. 102) is DENIED. IT IS FURTHER ORDERED that Plaintiffs Motion for Court to Issue Rulings (ECF No. 98) is DENIED as MOOT. IT IS FINALLY ORDERED that, although Plaintiffs are proceeding pro se, they are bound by the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the Eastern District of Missouri. Signed by Magistrate Judge Terry I. Adelman on 1/30/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER CROSS, in His Capacity as
Legal Guardian of ELDON FLAHERTY, and
CHRISTOPHER CROSS, Individually,
Plaintiffs,
v.
MHM CORRECTIONAL SERVICES, INC.,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 4:11CV1544 TIA

MEMORANDUM AND ORDER
This matter is before the Court on several motions by Plaintiff for leave to file a Fourth
Amended Complaint (ECF Nos. 74, 93, 102). The parties consented to the jurisdiction of the
undersigned pursuant to 28 U.S.C. § 636(c).
Background
Plaintiffs originally filed this action pro se under 42 U.S.C. § 1983 on September 6, 2011.
(Pls.’ Compl., ECF No. 1) Plaintiffs then filed a pro se Amended Complaint on November 7,
2011, a pro se Second Amended Complaint on September 18, 2012, and a Third Amended
Complaint through court appointed counsel on June 20, 2013. (ECF Nos. 3, 40, 58)
In the Third Amended Complaint, Plaintiffs allege that Eldon Flaherty, who is incarcerated
at the Potosi Correctional Center, had previously been adjudicated as totally incapacitated and
disabled. (Third Am. Compl. ¶ 5, ECF No. 58) Plaintiff Christopher Cross is the dulyappointment Guardian of Mr. Flaherty. (Id. at ¶ 6) Plaintiffs assert that the named Defendants
MHM Correctional Services, Inc. (“MHM”), MHM CEO Michael Pinkert, MHM COO Steven

Wheeler, psychiatrist Dr. Jones, psychiatrist Dr. Reddy, Director of the Missouri Sexual Offender
Program Julie Motley, Regional Administrator Mary LeAnn Vogt, counselor Jennifer Diane
Kearns, Director of the Missouri Department of Corrections (“MDOC”) George Lombardi,
General Counsel of MDOC Matthew Briesacher, Director of Offender of Rehabilitation Services
Matthew Sturm, and Chair, Division of Probation & Parole Ellis McSwain, Jr., acted individually
and in concert to deprive Plaintiffs of their Constitutional rights. (Id. at ¶¶ 1, 7-19) Specifically,
Plaintiffs allege that Defendants MHM, Pinkert, Wheeler, Dr. Jones, Dr. Reddy, Motley, Vogt,
and Kearns operated under a contract with MDOC to provide prison mental health, psychiatric,
and pharmaceutical services and that, despite Mr. Flaherty’s diagnosed severe, mental
impairments, failed to provide a proper sex offender evaluation and diagnosis, which resulted in
incarceration instead of probation. (Id. at ¶¶ 22-35) Further, Plaintiffs contend that Defendants
MHM, Wheeler, and Pinkert acted with deliberate indifference to Mr. Flaherty’s serious
medical/mental health needs by failing to insure that all MHM employees were properly trained
and supervised. (Id. at ¶¶ 36-38) With regard to the treating psychiatrists, Plaintiffs assert that
they showed deliberate indifference by failing or refusing to prescribe to Mr. Flaherty deferment
from the Missouri Sexual Offender Program (“MOSOP”), a prerequisite to release prior to an
inmate’s sentence completion date, and restricted Mr. Cross’ ability to assist Mr. Flaherty. (Id. at
25, 42-51)
Plaintiffs further assert that Defendants Kearns and Vogt failed to provide individual
counseling to Mr. Flaherty and prevented Mr. Cross from discharging his duties and exercising his
authority as Mr. Flahery’s guardian. (Id. at ¶¶ 52-72) Additionally, Plaintiffs allege that the
Defendants subjected Plaintiffs to cruel and unusual punishment by failing to adhere to the
2

MOSOP regulations and failing to allow Plaintiff Cross to file grievances. (Id. at ¶¶ 73-80)
Plaintiffs also allege violations of their rights to Equal Protection, Procedural Due Process, and
Substantive Due Process pertaining to the MOSOP program, Mr. Flaherty’s medical treatment,
and Mr. Flaherty’s eligibility for parole. (Id. at ¶¶ 81-88) As a result of these allegations,
Plaintiffs contend that Defendants have deprived them of their rights under the United States
Constitution (Count I), the Missouri Constitution (Count II), and the Americans with Disabilities
Act (Count III). Plaintiffs request monetary relief, as well as Declaratory Judgment (Count IV)
and Injunctive Relief (Counts V and VI) enjoining Defendants from enforcing and applying to
Plaintiffs the MOSOP program and requiring Defendants to allow Mr. Cross to participate in all
aspects of Mr. Flaherty’s treatment and administrative matters. (Id. at ¶¶ 89-143)
Subsequent to the filing of the Third Amended Complaint, Plaintiffs’ court appointed
attorney filed a motion to withdraw under seal, and United States Magistrate Judge Frederick R.
Buckles granted the motion on September 17, 2013. (Order, ECF No. 88) While the motion to
withdraw was pending, however, Plaintiffs filed a pro se Motion for Leave to File a Fourth
Amended Complaint on August 30, 2013 and a Motion to Recuse Judge Buckles on September
12, 2013. (ECF Nos. 74, 86) Judge Buckles denied the motion to recuse but ordered that the
Clerk of the Court randomly reassign the cause of action to another judge. (ECF Nos. 89, 90)
Since September 17, 2013, Plaintiffs have filed an Amended Motion for Leave to File a Fourth
Amended Complaint, a Motion for Court to Issue Rulings, and a Second Amended Motion for
Leave to File a Fourth Amended Complaint. (ECF Nos. 93, 98, 102) Defendants have filed
memoranda in opposition to these motions. For the foregoing reasons, Plaintiffs’ motions to file a
Fourth Amended Complaint will be denied.
3

Discussion
Plaintiffs assert that the Court should allow them to file a 116-page Fourth Amended
Complaint adding several new Defendants, including his former court-appointed counsel, and
several new claims. Plaintiffs maintain that justice requires that the Court grant leave to file the
amended complaint based on court-appointed counsel’s conduct during representation.
Defendants, on the other hand, argue that the Court should deny the motions for leave to amend
because the Fourth Amended Complaint involves new theories of recovery and imposes additional
discovery requirements, which would cause undue burden on the Defendants.
Under Federal Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The court should freely give leave
when justice so requires.” Plaintiffs assert that the Fourth Amended Complaint corrects defects
contained in the Third Amended Complaint and adds Defendants and claims that have arisen since
filing the Third Amended Complaint. Defendants contend that the proposed Fourth Amended
Complaint causes undue burden and delay on the Defendants because the proposed amended
complaint adds new, unrelated claims and adds new Defendants. Defendants maintain that these
new claims would impose additional discovery requirements and further delay this case. Further,
Defendants assert that the motion is beyond the June 14, 2013 deadline for filing motions for
joinder of additional parties or amendment of pleadings set forth in the Case Management Order.
“A decision whether to allow a party to amend her complaint is left to the sound discretion
of the district court and should be overruled only if there is an abuse of discretion.” Bell v.
Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (citations omitted). When deciding
whether to grant leave to amend a complaint, courts consider: “(1) whether the motion was filed
4

in bad faith or with dilatory motive; (2) whether the motion was filed with undue delay; (3)
whether leave to amend would be unduly prejudicial to the opposing parties; and (4) whether the
proposed amendment would be futile.” Scott v. Buray Energy Int’l, LLC, No. 4:12-CV-150
CAS, 2012 WL 6726389, at *1 (E.D. Mo. Dec. 27, 2012) (citations omitted). A delay in seeking
leave to amend, alone, is insufficient justification for denying leave. Caimi v. Daimlerchrysler
Corp., No. 4:07-CV-1681 CAS, 2008 WL 619220, at *1 (E.D. Mo. March 3, 2008). The
nonmoving party must also demonstrate prejudice, which courts weigh against the prejudice to
the moving party by not allowing amendment. Id. (citation omitted). Courts typically grant leave
where the requested amendments are based on facts similar to the original complaint. Id. (citation
omitted). However, “when late-tendered amendments involve new theories of recovery and
imposed additional discovery requirements, courts are less likely to find an abuse of discretion
where leave is denied due to the prejudice involved to the non-moving party.” Id. (citation
omitted).
Here, Defendants argue that allowing Plaintiffs to file a Fourth Amended Complaint, at
this late date, would cause undue prejudice to the Defendants. Specifically, Defendants contend
that amended complaint sets forth new parties, contains new, unrelated claims, and imposes
additional discovery requirements. Plaintiffs, on the other hand, argue that court-appointed
counsel’s alleged “malpractice” necessitated filing an amended complaint.
The Court finds that granting leave to file the fourth amended complaint is not warranted.
First, the Case Management Order, dated May 2, 2013, set forth the date for motions for joinder
of additional parties or amendment of pleadings as June 14, 2013. (Case Management Order 1,
ECF No. 52) Plaintiffs did not seek leave to file the amended complaint until August 30, 2013,
5

well after the deadline had passed. Further, Plaintiffs acknowledge that they seek leave to add
claims against court-appointed counsel and adds new parties and claims that arose after filing the
Third Amended Complaint. Plaintiffs do not demonstrate any nexus between the original claims
and the new claims and parties. Additionally, the allegations against court-appointed counsel are
unrelated to Plaintiffs’ § 1983 claims against prison officials and mental health providers. Finally,
the Court notes that, under the CMO, several discovery deadlines have already passed, and
several more are only a couple months away. To essentially start the case over, which has been
pending for over two years and already has been amended several times, would cause further
delay and burden Defendants with additional responsive pleading and discovery requirements.
See Enterprise Rent-A-Car Co. v. U-Haul Int’l, Inc., No. 4:03-CV-1480 CAS, 2006 WL
4899925, at *2 (E.D. Mo. Aug. 17, 2006) (denying motion to file fifth amended complaint where
defendants would suffer undue prejudice based on the necessity of additional discovery). Further,
Plaintiffs are not prejudiced, as they can bring these new claims against the appropriate defendants
in a separate action. Lomack v. McKinney, No. 4:09cv0557 TCM, 2010 WL 2553675, at *2
(E.D. Mo. June 23, 2010).
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave of Court for Plaintiff to
File his Fourth Amended Complaint (ECF No. 74) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Amended Motion for Leave to File a
Fourth Amended Complaint (ECF No. 93) is DENIED.

6

IT IS FURTHER ORDERED that Plaintiffs’ Second Amended Motion for Leave to File
his Fourth Amended Complaint or in the Alternative, to Quash the Third Amended Complaint,
and Strike it from the Record and Grant Plaintiff Leave to Refile (ECF No. 102) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Court to Issue Rulings (ECF
No. 98) is DENIED as MOOT.
IT IS FINALLY ORDERED that, although Plaintiffs are proceeding pro se, they are
bound by the Federal Rules of Civil Procedure and the Local Rules of the United States District
Court for the Eastern District of Missouri.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 30th day of January, 2014.

7