Wilson v. Sabatka-Rine et al

Filing 99

ORDER granting Wilson's 94 Motion for Leave to Amend Complaint. Amended Complaint due by 3/24/2014. Wilson shall have until on or before March 24, 2014, to file the Third Amended Complaint. Wilson shall have until April 11, 2014, to respond to the defendants' Second Motion for Summary Judgment. The defendants may have until April 21, 2014, to reply. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

HAROLD B. WILSON,
Plaintiff,

4:11CV3215

vs.

ORDER

DIANE SABATKA-RINE, et al.,
Defendants.

This matter is before the court on the plaintiff Harold B. Wilson’s (Wilson) Motion
for Leave to Amend Complaint (Filing No. 94).

Wilson filed the proposed Third

Amended Complaint (Filing No. 94-1) and a brief (Filing No. 95) in support of the
motion. The defendants filed a brief (Filing No. 96) in opposition to the motion. Wilson
filed a brief (Filing No. 98) in reply.

BACKGROUND
Wilson, who is currently confined in the Lincoln Correctional Center (LCC), is a
practicing adherent of the Wiccan religion.

This case generally stems from the

defendants’ alleged violations of Wilson’s First Amendment right to practice his religion.
Wilson, proceeding pro se, filed his original complaint on November 25, 2011. See
Filing No. 1 - Complaint. Wilson filed an amended complaint on January 18, 2012. See
Filing No. 12 - Amended Complaint. After conducting an initial review of the Amended
Complaint, the court dismissed several of Wilson’s claims.
Memorandum and Order.

See Filing No. 15 -

On March 15, 2012, Wilson filed a second amended

complaint. See Filing No. 18 - Second Amended Complaint. After a second initial
review, the court dismissed several more claims. See Filing No. 19 - Memorandum and
Order. Subsequently, the defendants filed a motion for summary judgment. See Filing
No. 53 - Motion for Summary Judgment. On September 27, 2013, the court granted in
part and denied in part the defendants’ summary judgment motion. See Filing No. 63 Memorandum and Order. Thereafter, the court appointed Wilson an attorney because
“it appears that this case may be headed for a trial.” See Filing No. 64 - Memorandum
and Order. Following counsel’s appearance for Wilson, the court entered a progression

order. See Filing No. 67 - Order Setting Final Schedule for Progression of Case. The
court set January 31, 2014, as the deadline for depositions and February 14, 2014, as
the deadline for summary judgment motions. Id. The final pretrial conference is set for
June 26, 2014, and a jury trial is set for July 21, 2014. Id. On January 29, 2014, the
defendants filed a second summary judgment motion, which remains pending. See
Filing No. 87 - Second Motion for Summary Judgment. Wilson filed the instant motion
to amend his Second Amended Complaint on February 19, 2014. See Filing No. 94 Motion for Leave to Amend Complaint.
Wilson seeks to amend his complaint for a third time for the following reasons:
(1) clarify and plead with more particularity the claims
remaining after the Court’s order denying summary judgment
in part; (2) eliminate certain claims that Plaintiff can no
longer pursue; (3) dismiss certain Defendants; (4) add
claims that discovery has shown were wrongfully dismissed;
(5) add additional claims, add official-capacity injunctive
relief claims, and one additional Defendant based on
information gained through discovery and/or because of
Plaintiff’s transfer to another facility.
See Filing No. 95 - Brief p. 1. Wilson states he seeks to streamline his remaining claims
in preparation for trial after he conducted a thorough analysis of his claims with recently
appointed counsel and determined the viability of his claims.

Id. at 3-4.

Wilson

contends the motion is not made to delay these proceedings. Id. Wilson asserts the
amended complaint will not affect the progression deadlines set forth in the court’s
progression order. Id. Wilson also contends the amendments are brought in good faith
and are not futile. Id. at 4-5. Additionally, Wilson argues the defendants will not be
unfairly prejudiced because the factual underpinnings stated in his previous complaints
support the proposed new defendant and the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA) claim. Id. at 5-6. Wilson asserts the proposed Third
Amended Complaint will not result in additional discovery because the defendants
already possess evidence to defend Wilson’s claims or the necessary evidence will be
discovered during the remaining agreed-upon depositions. Id.1 Lastly, Wilson seeks an

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Wilson represents the defendant Diane Sabatka-Rine and the proposed new defendant Mario
Peart were scheduled for depositions for February 21, 2014, and he planned to conduct three additional
depositions in the following weeks with the defendants’ permission. See Filing No. 95 - Brief p. 2, 4-7.
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extension of time to respond to the pending Second Motion for Summary Judgment until
21 days after the instant motion is ruled upon. Id. at 6.
The defendants do not object to dismissing the defendants Mel Rouf and Randy
Bartlet or the claims regarding a paralegal textbook and a retaliatory transfer. See
Filing No. 96 - Response p. 3. However, the defendants object to adding an additional
defendant, adding the current defendants in their official capacities, adding claims for
injunctive relief, adding claims under RLUIPA, and reviving Wilson’s Book of Shadows
claim previously dismissed. Id. The defendants argue it is futile for Wilson to revive his
Book of Shadows claim because the court dismissed the claim for failure to exhaust
administrative remedies. Id. at 4 (citing Filing No. 63 - Memorandum and Order p. 15).
The defendants oppose all other amendments because the amendments would unfairly
prejudice the defendants. Id. at 5-8. The defendants argue this amendment will further
delay this case, which has been pending for two years, and while Wilson was recently
appointed counsel, the defendants should not be prejudiced because Wilson was
appointed counsel before the trial date was set. Id. The defendants also contend
Wilson could have sought to amend at the time the court appointed counsel.

Id.

Additionally, the defendants argue this proposed amended complaint adds new theories
of recovery, additional discovery requirements, and another defendant, all of which
place further discovery obligations upon the defendants. Id. Lastly, the defendants
assert there is a prejudicial danger witnesses’ memories will fade as this case is further
delayed. Id.
In reply, Wilson contends he properly exhausted his Book of Shadows claim and
therefore the amendment is not futile. See Filing No. 98 - Reply p. 1-4 (citing 98-1 Exs. 13-15 - Grievance Forms). Wilson argues requiring him to file a separate suit on
his Book of Shadows claim would contradict the Prison Litigation Reform Act’s (PLRA)
policy goal of reducing prisoner lawsuits. Id. Wilson also argues the defendants have
not shown they would be unfairly prejudiced if the court granted Wilson leave to amend.
Id. at 4-6. Wilson asserts the defendants’ argument that the amendment would “place
further discovery obligations upon the Defendants” is conclusory and lacks articulation
of any discovery the defendants actually require. Id.

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ANALYSIS
Under Federal Rule of Civil Procedure 15, a court should grant leave to amend
freely “when justice so requires.” However, “[a] district court may deny leave to amend
if there are compelling reasons such as undue delay, bad faith, or dilatory motive,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the amendment.

Duplicative and

frivolous claims are futile.” Reuter v. Jax Ltd., Inc., 711 F.3d 918, 922 (8th Cir. 2013)
(internal quotation and citation omitted). The party opposing the amendment has the
burden of demonstrating the amendment would be unfairly prejudicial. Roberson v.
Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001); see Hanks v. Prachar, 457 F.3d
774, 775 (8th Cir. 2006). There is no absolute right to amend. See Hartis v. Chicago
Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). Whether to grant a motion for leave to
amend is within the sound discretion of the district court. See Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008). “If a party files for leave to amend outside of
the court’s scheduling order, the party must show cause to modify the schedule.” Id.
(citing Fed. R. Civ. P. 16(b)); see Hartis, 694 F.3d at 948. Additionally, the court may
consider whether the “late tendered amendments involve new theories of recovery and
impose additional discovery requirements.” Popoalii, 512 F.3d at 497.
The court finds Wilson has shown good cause to file a Third Amended
Complaint. Although this case has been pending for a significant amount of time and
Wilson’s counsel was appointed in October 2013, this is Wilson’s first amendment
following appointment of counsel and Wilson did not unduly delay in seeking to amend
his complaint. Since Wilson’s counsel’s appointment, extensive discovery, including
written discovery, the production of documents, and depositions, has occurred and the
parties have agreed on additional discovery beyond the discovery deadlines. Wilson’s
proposed Third Amended Complaint eliminates two defendants and two of Wilson’s
claims, clarifies and streamlines Wilson’s claims, and will aid in preparation for trial.
The amendments are intended to conform the dispute as it has developed through
discovery. Wilson’s proposed Third Amended Complaint also adds a defendant and
RLUIPA claims; however, Wilson represents the added defendant and claims rely on

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the same “factual underpinnings” of Wilson’s current claims, which the defendants do
not dispute.
The defendants have failed to sustain their burden of showing unfair prejudice.
The defendants provide conclusory statements the defendants would be unfairly
prejudiced. Further, the defendants fail to specify what discovery, in addition to that
already taken and scheduled, would be necessary.

The proposed Third Amended

Complaint may require the defendants to revise their pending summary judgment
motion; however, the defendants have not shown such a revision would unfairly
prejudice the defendants.
The defendants also fail to show Wilson’s proposed amendments are futile. A
district court’s denial of leave to amend a complaint may be justified if the amendment
would be futile. See Geier v. Mo. Ethics Com’n, 715 F.3d 674, 678 (8th Cir. 2013)
(finding amendment futile where court had already considered argument in dispositive
motion). However, a motion to amend should be denied on the merits “only if it asserts
clearly frivolous claims or defenses.” Becker v. Univ. of Neb. at Omaha, 191 F.3d
904, 908 (8th Cir. 1999) (quotations and citations omitted).

Further, “likelihood of

success on the new claim or defense is not a consideration for denying leave to amend
unless the claim is clearly frivolous” or “legally insufficient on its face.” Becker, 191
F.3d at 908; Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 225 (8th Cir.
1994) (citation omitted). “When the court denies leave [to amend] on the basis of futility,
it means the district court has reached the legal conclusion that the amended complaint
could not withstand a motion to dismiss under Rule 12(b)(6)[.]” Briscoe v. Cnty. of St.
Louis, Mo., 690 F.3d 1004, 1015 (8th Cir. 2012) (first alteration in original) (citation
omitted). “The party opposing such amendment ha[s] the burden of establishing that
leave to amend would be . . . futile.” Sokolski v. Trans Union Corp., 178 F.R.D. 393,
396 (E.D.N.Y. 1998) (citation omitted). The court is mindful of the liberal policy toward
amendments and “the underlying purpose of Rule 15–to facilitate decision on the merits
rather than on the pleadings or technicalities.” Sharper Image Corp. v. Target Corp.,
425 F. Supp. 2d 1056 (N.D. Cal. 2006) (internal citation omitted); see Am. Family Mut.
Ins. Co. v. Hollander, 705 F.3d 339, 348 (8th Cir. 2013).

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Although the court will not determine the merits of Wilson’s claims at this time,
the defendants fail to meet their burden of showing it would be legally futile to allow
Wilson to file the proposed Third Amended Complaint. The court previously dismissed
Wilson’s Book of Shadows claim because he failed to exhaust his administrative
remedies. See Filing No. 63 - Memorandum and Order p. 15. The evidence before the
court at the summary judgment stage showed Wilson only submitted a November 16,
2011, Informal Grievance Resolution Form regarding the return of his Book of Shadows.
See id. at 6-7 (citing Filing No. 55-2 - Sabatka-Rine Aff. ¶ 12). Wilson received a
response on November 29, 2011, informing him the matter was under review and
appropriate action would be taken. Id. (citing Filing No. 55-2 - Sabatka-Rine Aff. ¶ 13).
Sabatka-Rine attested Nebraska State Penitentiary staff did not receive any further
grievances from Wilson regarding the return of the Book of Shadows. Id. (citing Filing
No. 55-2 - Sabatka-Rine Aff. ¶ 14). Wilson also represented in his brief in opposition to
the defendants’ summary judgment motion that he did “not [pursue] the entire
[grievance] procedure concerning my Book of shadows because staff had already lost
them or disposed of them, and so they could never be returned to me, so why waste the
time and expense of seeking to have something returned to me that no longer existed.”
See Filing No. 56 - Wilson’s Response ¶ 7. However, after reviewing Wilson’s evidence
in support of the instant motion, the court finds Wilson may have properly exhausted the
three-step grievance process. See Filing No. 98 - Reply p. 1-4 (citing 98-1 - Exs. 13-15
- Grievance Forms). Further discovery revealed Wilson submitted the following forms
referencing his Book of Shadows: an “Informal Grievance Resolution Form” to unit staff
on October 15, 2011, a “Grievance Form Step One” to the Chief Executive Officer on
November 1, 2011, and a “Grievance Form Step Two” to Central Office Appeal on
November 23, 2011. See Filing No. 98-1 - Exs. 13-15. The Director of the Nebraska
Department of Correctional Services responded to Wilson’s grievances on December 8,
2011 and determined, in part, “all accommodations have been made to facilitate your
practice of your religion to the extent possible while in segregation.” Id. The three-step
grievance process regarding Wilson’s Book of Shadows claim was seemingly
completed well before Wilson filed the instant motion to amend, as well as before all
prior amended complaints and the court’s Memorandum and Order dismissing Wilson’s
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Book of Shadows claim. Accordingly, amending his complaint to include the Book of
Shadows claim, which is similar to Wilson’s current claims for possession of tarot cards
and religious items, is not futile.

IT IS ORDERED:
1.

Wilson’s Motion for Leave to Amend Complaint (Filing No. 94) is granted.

2.

Wilson shall have until on or before March 24, 2014, to file the Third

Amended Complaint.
3.

Wilson shall have until April 11, 2014, to respond to the defendants’

Second Motion for Summary Judgment. The defendants may have until April 21, 2014,
to reply.

Dated this 21st day of March, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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