Ellis v. Franco et al

Filing 76

REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen. Objections to R&R due by 2/21/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (mlt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GENE G. ELLIS,
Plaintiff,
v.

CIV 15-0848 JCH/KBM

GERMAN FRANCO, VINCE VIGIL,
ALISHA TAFOYA-LUCERO, COLLEEN
MCCARNEY and HECTOR CARDENAS,
Defendants.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Plaintiff’s Motion to Amend the Complaint.
Doc. 68, filed December 19, 2016. District Judge Judith Herrera referred this matter to
me on September 29, 2015, for a recommended disposition. Doc. 6. Having considered
the parties’ submissions and the relevant law, the Court recommends that Plaintiff’s
Motion to Amend be denied.
I. Background
Plaintiff, a prisoner proceeding pro se, filed this action because he received
threats from other inmates due to the nature of his criminal convictions after being
transferred to the Penitentiary of New Mexico (“PNM”).1 See Doc. 1 at 4-5. Plaintiff later
clarified that he has also received threats because of a debt owed by his brother, who is
likewise an inmate in the custody of the New Mexico Corrections Department. See Doc.

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Plaintiff’s Amended Complaint states that “on or about June 20, 2013, [he] was convicted of 1
count of kidnapping in the 1st degree, 4 counts of criminal sexual penetration in the 2nd degree, 1
count of criminal sexual contact of a minor in the 2nd degree, aggravated assault with a deadly
weapon in the 4th degree, aggravated burglary in the 2nd degree, and bribery of a witness in the
3rd degree. He was sentenced to 43 years in the custody of the New Mexico Corrections
Department.” Doc. 11 at ¶ 9.

11 at 4-5. Due to these threats, Plaintiff claims that he was forced to refuse showers
and recreation “because attending these functions require being placed among the
inmates who are threatening [him].” Doc. 1 at 2; see also Doc. 34 at 1 (noting that a
fellow inmate told Plaintiff that “if he did not stay in his cell he would be assaulted.”).
Thus, Plaintiff’s amended and supplemented Civil Rights Complaint alleges that
PNM Warden German Franco, Deputy Warden Alisha Tafoya-Lucero, Security Captain
Hector Cardenas, Unit Manager Vince Vigil, and New Mexico Corrections Department
Classification Bureau Chief Colleen McCarney violated his Eighth Amendment rights by
refusing to transfer him out of PNM’s general population. See Docs. 1, 11, 25. Plaintiff
further alleges that Unit Manager Vigil retaliated against him in violation of the First
Amendment after Plaintiff filed the present lawsuit. See Docs. 16 & 17; see also Doc. 25
at 4, 6.
Plaintiff’s original Civil Rights Complaint was filed on September 23, 2015. Doc.
1. Over the course of this litigation, Plaintiff has amended and supplemented his
Complaint on numerous occasions. See Docs. 1, 7, 11, 16, 17, 19, 20, 21, 34, 37, 44.
Plaintiff’s most recent supplementation was filed January 21, 2016, approximately
eleven months prior to the instant motion. Doc. 44.
Plaintiff now seeks to further amend his Complaint to name four additional
defendants, add additional claims, and alter the relief he initially requested. See Doc.
68. The proposed Defendants are Corrections Officers Sammy Oroz and Carlos Sutton,
Director of Adult Prisons Jerry Roark, and Former Statewide Grievance/Disciplinary
Manager Larry Phillips. See id. at 2-3. The additional claims pertain to an alleged
assault Plaintiff suffered at the hands of Corrections Officers Oroz and Sutton on or

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about June 23, 2015, as well as statements asserting that Messrs. Roark and Phillips
“had the opportunity to properly address Plaintiff’s concerns and ensure his safety but
failed to do so.” Id. at 3. In terms of the relief he requests, Plaintiff seeks $27,000.00
each from Officers Oroz and Sutton, $15,000.00 each from the original Defendants as
well as Messrs. Roark and Phillips, $100,000.00 for “mental and emotional trauma
suffered at the hands of all Defendants collectively,” $250,000.00 each from Defendants
Vigil, Cardenas and Franco “for their deliberate indifference towards Plaintiff’s safety,”
and, finally, punitive damages in the amount of $1,000,000.00 “for forced solitary
confinement, retaliation for asserting [his] 1st Amendment right and conditions of
confinement from all Defendants collectively.” Id. at 4.
II. Standard of Review
At this stage in litigation, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). As stated in the
Rule, “[t]he Court should freely give leave when justice so requires.” Id. Thus, “[r]efusing
leave to amend is generally only justified 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 the amendment.” Ali v. Dinwiddie, 291
F. App'x 164, 166 (10th Cir. 2008) (unpublished) (quoting Frank v. U.S. West, Inc., 3
F.3d 1357, 1365 (10th Cir.1993)).
III. Analysis
Defendants oppose Plaintiff’s Motion and contend that leave to amend should be
denied on the grounds of undue delay, undue prejudice and futility. See Doc. 70 at 2.
The Court addresses each in turn.

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A) Undue Delay
“It is well settled in this circuit that untimeliness alone is a sufficient reason to
deny leave to amend, . . . especially when the party filing the motion has no adequate
explanation for the delay.” Frank, 3 F.3d at 1365 (citations omitted). “Furthermore where
the party seeking amendment knows or should have known of the facts upon which the
proposed amendment is based but fails to include them in the original complaint, the
motion to amend is subject to denial.” Id. (quoted authority and internal alterations
omitted).
As to the alleged assault by Correctional Officers Sutton and Oroz, Plaintiff says
that when he filed the Amended Complaint, he was unaware he could sue these two
individuals and that he is seeking to add evidence of which he was unaware at the time
that the original complaint was filed. Doc. 68 at 1. In support, Plaintiff’s proposed
“addendum to facts” cites pages 35-69 of Defendants’ Limited Martinez Report. Id. at 3.
The Court finds that Plaintiff was aware of the facts upon which the proposed
amendment is based as to officers Sutton and Oroz. In his Amended Complaint, filed
October 15, 2015, Plaintiff references an incident on or about June 23, 2015, wherein
he “suffered a personal injury at the hands of 2 officers of the New Mexico Corrections
Department during a mental breakdown which resulted in his receiving 3 sutures to his
lower lip.” Doc. 11 at 6, ¶ 25. While Plaintiff does not identify Officers Sutton or Oroz by
name, the documents in the Limited Martinez Report that Plaintiff refers to make clear
that he knew their identities at the time of the alleged assault. See Doc. 46-3 at 5, 9-10.
Thus, as Defendants argue, “Correctional Officers Sutton and Oroz were certainly
known to Plaintiff as the persons who restrained him during the incident of June 23,

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2015[.]” Doc. 70 at 3. Therefore, because Plaintiff offers no adequate reason for the
delay in alleging a claim against Officers Sutton and Oroz, the Court finds that the delay
is unjustified.
Plaintiff also fails to explain why the Court should excuse his delay in naming
Messrs. Roark and Phillips as Defendants. See Docs. 68, 75. Plaintiff’s proposed
addendum as to these individuals asserts that they failed to take actions to adequately
address his safety concerns on November 20, 2015, and December 10, 2015,
respectively. Doc. 68 at 3. In support of these allegations Plaintiff cites to two
documents he filed in this case. Id. The first is a notice that his grievance was denied by
Mr. Roark, which Plaintiff filed on the docket on December 10, 2015. See Doc. 29. The
second is correspondence from Mr. Phillips advising Plaintiff to follow Corrections
Department grievance procedures, which Plaintiff filed on the docket on January 21,
2016. See Doc. 45 at 7-8. Neither of these filings indicated that Plaintiff intended to
pursue claims against these individuals, and the Court again finds undue delay.
Finally, Plaintiff provides no explanation as to why he delayed in amending his
claims for damages. Plaintiff originally claimed “compensatory damages in the amount
of $10,000.00 against Defendants Deputy Warden Alisha Tafoya-Lucero and Unit
Manager Vince Vigil severally and jointly” and “punitive damages in the amount of
$5,000.00 against each Defendant.” Doc. 11 at 14. Why Plaintiff’s demands have
substantially increased at this stage is beyond the purview of this decision; the salient
point is that Plaintiff offers no explanation as to why he did not seek to amend his
damages claims at an earlier date. See Matson v. Hrabe, 612 F. App'x 926, 929 (10th
Cir. 2015), cert. denied, 136 S. Ct. 911 (2016); Williams v. Wilkinson, 645 F. App'x 692,

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709 (10th Cir. 2016) (“Mr. Williams has identified no adequate explanation for the delay
here. We therefore hold the district court did not abuse its discretion in denying the
motion to amend under these circumstances.”).
B) Undue Prejudice
“The second, and most important, factor in deciding a motion to amend the
pleadings, is whether the amendment would prejudice the nonmoving party.” Minter v.
Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006).
In order to reach a decision on whether prejudice will occur that
should preclude granting an amendment, the court will consider the
position of both parties and the effect the request will have on them. This
entails an inquiry into the hardship to the moving party if leave to amend is
denied, the reasons for the moving party failing to include the material to
be added in the original pleading, and the injustice resulting to the party
opposing the motion should it be granted.
For example, if the amendment substantially changes the theory on
which the case has been proceeding and is proposed late enough so that
the opponent would be required to engage in significant new preparation,
the court may deem it prejudicial.
6 Fed. Prac. & Proc. Civ. § 1487 (3d ed. 2016) (footnotes omitted). “Courts will properly
deny a motion to amend when it appears that the plaintiff is using Rule 15 to make the
complaint “a moving target[.]” Minter, 451 F.3d at 1206 (citation omitted).
Plaintiff’s proposed amendment as to Defendants Sutton and Oroz constitutes an
entirely different claim than those that have been pending before the Court since
Plaintiff’s last amendment. Compare Benefield v. McDowall, 241 F.3d 1267, 1270 (10th
Cir. 2001) (discussing Eighth Amendment claims for failure to protect); Gee v. Pacheco,
627 F.3d 1178, 1189 (10th Cir. 2010) (describing First Amendment retaliation claims in
the prison context), with Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (discussing inmate
excessive force claims). Thus, Plaintiff’s proposed amendment as to Corrections
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Officers Sutton and Oroz “substantially changes the theory on which the case has been
proceeding.” 6 Fed. Prac. & Proc. Civ. § 1487 (3d ed. 2016).
While the same cannot be said of Plaintiff’s proposed claims against Messrs.
Roark and Phillips, the fact remains that Plaintiff knew of these individuals, and their
alleged inaction, long before filing his present motion to amend. And, as Defendants
rightly point out, they “were already in the midst of preparing [their] supplemental
Martinez Report” when Plaintiff filed the present motion. Doc. 70 at 5. Plaintiff offers no
adequate reason for his delay in naming Roark and Phillips, and the Court finds that
requiring Defendants to respond to his additional allegations against them is unduly
prejudicial. See Whitington v. Ortiz, 307 F. App'x 179, 196 (10th Cir. 2009)
(unpublished) (affirming denial of a prisoner’s motion to amend because “each
amendment with its additional allegations and circumstances forces the defendants to
reevaluate and correlate their responses and defenses.”).
C) Futility
“A proposed amendment is futile if the complaint, as amended, would be subject
to dismissal.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999) (citation omitted).
“The Prison Litigation Reform Act requires that a prisoner exhaust his administrative
remedies before bringing a lawsuit for the violation of his federally protected rights.”
Hunsaker v. Alexander, 520 F. App’x 717, 719 (10th Cir. 2013) (unpublished) (citing 42
U.S.C. § 1997e(a)). Denial of a prisoner’s motion to amend as futile is warranted where
the amended complaint “would be doomed for lack of exhaustion.” Hunsaker, 520 F.
App’x at 719.

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Defendants assert that Plaintiff’s proposed amendments would be futile because
he has not exhausted any of the claims he seeks to raise. In support, Defendants cite to
the Supplemental Martinez Report. See Doc. 69 at 19. Attached to the Supplemental
Martinez Report is Plaintiff’s grievance history. See Docs. 69-73, 69-74, 69-75, 69-76.
As Defendants allege, nowhere in Plaintiff’s grievance history is there any evidence that
he has exhausted his administrative remedies as to the claims he wishes to bring
against Officers Sutton and Oroz or Messrs. Roark and Phillips. See id. Accordingly,
Plaintiff’s proposed amendment should be denied as futile because he failed to exhaust
his administrative remedies.
IV. Conclusion
Plaintiff’s proposed amendments are untimely without excuse, prejudicial to the
Defendants, who have already filed their Martinez Report addressing his original claims,
and futile for failure to exhaust.
Wherefore, IT IS HEREBY RECOMMENDED that the Court deny Plaintiff’s
Motion to Amend (Doc. 68).
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.

_________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

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