Canales v. Southport Correctional Facility et al

Filing 33

DECISION AND ORDER granting 28 Motion to Amend by Luis A. Canales. Signed by Hon. Hugh B. Scott on 2/9/2016. (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LUIS A. CANALES,
Plaintiff,
REPORT AND
RECOMMENDATION
v.
AND
M. SHEAHAN et al.,
Defendants.

I.

DECISION AND ORDER
12-CV-693A

INTRODUCTION
The Hon. Richard J. Arcara referred this case to this Court under 28

U.S.C. § 636(b). (Dkt. No. 29.) Pending before the Court is a motion (Dkt. No.
24) by defendants to dismiss plaintiff’s amended complaint under Rule 12(b)(1)
of the Federal Rules of Civil Procedure (“FRCP”). In his amended complaint
(Dkt. No. 6), plaintiff listed explicitly that every defendant was sued in an official
capacity. (Id. at 4–5.) The designation of official capacity would have implicated
Eleventh Amendment immunity and would have barred suit. Judge Michael
Telesca, acting as a duty judge for purposes of pro se screening orders, decided
to “interpret plaintiff’s claims to have been made in the individual capacity of
each defendant. Pro se petitions should be characterized according to the relief
sought, and not to the label given to them by pro se prisoners unlearned in the
law.” (Dkt. No. 10 at 3.)

Through the pending motion, defendants now challenge the prior ruling
that the amended complaint would be assessed as if plaintiff sued every
defendant in an individual capacity. Defendants argue that plaintiff made an
unambiguous designation, that the issue of individual versus official capacity
implicates subject-matter jurisdiction, and that the Court cannot confer subjectmatter jurisdiction sua sponte. Plaintiff urges the Court to stand by the prior
ruling. In the alternative, however, plaintiff attaches a proposed second
amended complaint to his response papers and includes a cross-motion for
leave to file it.
The Court has deemed defendants’ motion and plaintiff’s cross-motion
submitted on papers under Rule 78(b) of the FRCP. For the reasons below, the
Court grants plaintiff’s non-dispositive motion. The Court also recommends
denying defendants’ dispositive motion.
II.

BACKGROUND
This case concerns numerous allegations against numerous state prison

employees, allegations that fall into three broad categories. In one category of
allegations, plaintiff claims that he filed grievances in 2011, and 2013, to
complain about racially motivated harassment and theft of property. Defendants
retaliated against plaintiff for filing the grievances; the most severe retaliation
allegedly consisted of physical assaults, sodomy, and shackling against plaintiff
on August 8, 2011 and July 7, 2013. The retaliation included false charges to
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set up loss of privileges and months of confinement in the Special Housing Unit
(“SHU”). A second category of allegations concerns denial of medical treatment
and of reasonable accommodations for plaintiff’s disability. The denial of
medical treatment includes a refusal to treat plaintiff after he was assaulted.
Plaintiff asserts other refusals of medical treatment for carpal tunnel syndrome,
refusals that he believes were racially motivated. Plaintiff’s complaints of carpal
tunnel syndrome and related nerve damage in his left wrist formed the basis of
his disability claim. A third category of allegations concerns unjustified denial of
library and mail services in retaliation for continued grievances. According to
plaintiff, library staff refused to provide him books, citations, and other materials
over a period of several years. The refusals caused him to miss a supplemental
filing deadline for a state court appeal in October 2011; the state court affirmed a
judgment of conviction on October 25, 2011.1 Plaintiff also insists that
defendants have denied him access to legal mail services and caused some of
his mailings to be returned for insufficient postage.
To date, plaintiff has submitted two complaints that the Court has
subjected to two screening orders. Plaintiff filed his original complaint on July
23, 2012. (Dkt. No. 1.) Judge John Curtin issued an initial screening order on

1

The Court takes judicial notice that, based on the specific date that
plaintiff has provided, the appellate decision in question appears to be People v.
Canales, 931 N.Y.S.2d 407 (App. Div. 2011).
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October 2, 2013 (Dkt. No. 4); inter alia, the order required plaintiff to file an
amended complaint to avoid dismissal on the grounds of frivolousness and
incomprehensible writing. Plaintiff filed his amended complaint on December
18, 2013. Judge Telesca’s screening order, mentioned above in the
Introduction, followed on February 20, 2015. For purposes of today’s writing, the
most pertinent part of that screening order is the part that the Court has
mentioned already: the decision to construe the substance of plaintiff’s
allegations as referring to defendants’ individual capacities, despite the explicit
references in the amended complaint to defendants’ official capacities.
Defendants filed their pending motion on July 6, 2015. In support of their
motion, defendants note that Judge Telesca already acknowledged a lack of
subject-matter jurisdiction in the absence of the interpretation that he gave to the
amended complaint. Defendants distinguish plaintiff’s situation from situations
in which pro se plaintiffs make allegations against state officials but remain silent
as to whether those officials acted in an individual or official capacity. Given
plaintiff’s explicit designation of official capacities, defendants assert that
sovereign immunity applies and that the Court cannot override a clear lack of
jurisdiction. To the extent that plaintiff makes claims about his disabilities under
the Americans with Disabilities Act or the Rehabilitation Act, defendants argue
that those claims are so incidental to the overall thrust of plaintiff’s

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allegations—violations of civil rights by way of 42 U.S.C. § 1983—that they do
not suffice to confer jurisdiction.
As mentioned above, plaintiff counters defendants’ motion in two ways. In
admittedly conclusory fashion, plaintiff asserts that Judge Telesca’s screening
order was correct and should not be disturbed. In the alternative, however,
plaintiff includes a cross-motion in his papers for leave to amend. Plaintiff
attaches a proposed second amended complaint to his papers. Plaintiff adds
two new names to the bottom of the caption of the proposed second amended
complaint—“A. Bartlett” and “S. Vonhagn,” two names that appear only in the
tenth claim concerning denial of certain law library services. The second
amended complaint also incorporates changes required by the previous two
screening orders. Critically, and without an explicit requirement from the Court,
the proposed second amended complaint changes the designation of all
defendants to say that all defendants acted in their individual capacities. The
proposed second amended complaint is otherwise similar to the amended
complaint in all material respects.
III.

DISCUSSION
A.

Leave to Amend as a Matter of Course (Non-dispositive)

Before addressing the more substantive motion that defendants filed, the
Court will address plaintiff’s cross-motion to file a second amended complaint.
In reviewing the docket for this case, the Court has noticed that the pending
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cross-motion represents plaintiff’s first voluntary request to file an amended
complaint. Plaintiff filed the first amended complaint under threat of dismissal by
the first screening order. With the cross-motion being plaintiff’s first request, the
question arises as to whether plaintiff qualifies for the right to amend under Rule
15(a)(1)(B). Under that rule, “[a] party may amend its pleading once as a matter
of course within . . . if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f), whichever is earlier.” FRCP 15(a)(1)(B).
In the Court’s experience, the typical scenario prompting the use of the rule
involves represented parties, an initial complaint, and an immediate motion to
dismiss. Nothing in the plain text of the rule, however, pushes against the view
that the right to amend once as a matter of course theoretically can be used
anytime in a case, as long as circumstances satisfy the prerequisites of Rule
15(a)(1)(B). Some authority has addressed the ability to amend as of course
later in a case, under the right circumstances. See Thompson v. Jiffy Lube Int’l,
Inc., 505 F. Supp. 2d 907, 913 (D. Kan. 2007) (“Plaintiffs have already amended
their complaint once; however, they requested and received leave of the Court.
Are Plaintiffs still entitled to amend as a matter of course? The authority on this
issue is divided; however, the plain language of the Rule persuades the Court
that Plaintiffs are still entitled to amend their pleading under Rule 15. Plaintiffs
have not yet amended as a matter of course and no responsive pleading has
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been filed.”) (citations omitted); Bishop v. Minnesota Dep’t of Human Servs., No.
CIV. 14-1898 ADM/SER, 2015 WL 4920262, at *4 (D. Minn. Aug. 12, 2015) (“In
his Motion to Dismiss or Amend, Bishop articulates his desire to amend his First
Amended Complaint, stating that he ‘chooses to either amend his complaint or
be allowed to re-file his complaint as a new action,’ and Bishop does not
expressly ‘invoke the . . . [Court’s] discretionary authority’ under Rule 15(a)(2).
Under these circumstances, the Court construes the Motion to Dismiss or
Amend as a request by Bishop to amend his complaint ‘once as a matter of
course’ under Rule 15(a)(1)(B). At the time Bishop filed his Motion to Dismiss or
Amend, Defendants had not filed a responsive pleading, and Bishop filed his
Motion to Dismiss or Amend seven days after Defendants filed and served the
Motion to Dismiss. Because Bishop requested to amend his complaint well
within 21 days after service of a motion under Rule 12(b), the Court
recommends that the Motion to Dismiss or Amend be granted to the extent
Bishop seeks to amend his First Amended Complaint.”) (citing Pure Country,
Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002); other citations
omitted); see also Roberts v. Long, No. 14-CV-0427-WQH DHB, 2014 WL
4829118, at *3 (S.D. Cal. Sept. 29, 2014) (requiring, and ultimately granting,
leave to amend because a motion to dismiss under habeas rules falls outside of
Rule 12); Cornelio v. Hirano, No. CIV. 12-00072 LEK, 2013 WL 3936201, at *4
(D. Haw. July 29, 2013) (implying that a pro se prisoner needed leave of court to
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file a fifth amended complaint only because he submitted it more than 21 days
after the filing of a motion to dismiss). This authority coincides with the principle
that Rule 15 confers “an absolute right to amend” when a plaintiff submits a
timely amendment and no responsive pleading has been served. See Peckham
v. Scanlon, 241 F.2d 761, 764 (7th Cir. 1957) (citations omitted).
Here, plaintiff never exhausted his right to amend his complaint once as a
matter of course. Plaintiff’s original complaint led to a screening order that
effectively ordered him to file an amended complaint; the screening order
technically granted leave to amend but did so with heavy criticism of the original
complaint and under threat of dismissal if no amendment followed. Either way,
plaintiff did not invoke his right to amend as a matter of course when filing the
amended complaint. Defendants never answered the amended complaint,
choosing instead to file the pending motion to dismiss. The filing of the motion
on July 6, 2015 started the 21-day clock under Rule 15(a)(1)(B). Plaintiff had
until July 27, 2015 to amend as a matter of course, or to respond to the motion.
Instead, plaintiff sent two letters in early August 2015 (Dkt. Nos. 25, 26)
requesting extensions. In the letters, plaintiff stated that he wanted to be “able to
respond to defendant’s Motion within reasonable time [sic]” (Dkt. No. 25 at 1),
but he gave no details about how he would respond. This lack of detail is
important because, as the docket now shows, the proposed second amended
complaint turned out to be what plaintiff had in mind as a response. Additionally,
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plaintiff invoked Rule 6(b), which generically allows the Court to extend
deadlines “[w]hen an act may or must be done within a specified time.” FRCP
6(b) (emphasis added). The deadline was extended to September 5, 2015.
Given that plaintiff, as a pro se litigant, would not have been sophisticated
enough to know how many deadlines needed extension, and given that
defendants did not oppose the request for an extension, prudence warrants a
finding that the extension preserved plaintiff’s right to amend as a matter of
course. Cf. Warden v. Russell, No. CV150361TUCJASJR, 2015 WL 9871633,
at *2 (D. Ariz. Oct. 13, 2015) (“As the Defendants recognize, Plaintiff did not file
his Motion to Amend until after the time period prescribed in Rule 15(a)(1)(B)
had expired, but did file it within the extended time period stipulated to by the
parties for the filing of the response to their motions to dismiss. In light of the
timing of the filing of Plaintiffs Motion to Amend, and in recognition of the
extreme liberality for allowing leave to amend under Fed. R. Civ. P. 15(a)(2), the
Defendants do not oppose the Motion to Amend.”) (internal quotation marks and
citations omitted), report and recommendation adopted, 2016 WL 233169 (D.
Ariz. Jan. 20, 2016). Plaintiff’s response—with its proposed second amended
complaint—was not filed until September 15, 2015 but was dated September 4,
2015. If the Court accepts the 10-day difference as a side effect of the prison
legal mail system then plaintiff’s proposed second amended complaint was

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timely. The Court thus finds that plaintiff may file his proposed second amended
complaint as a matter of course.
B.

Leave to Amend (Non-dispositive)

The Court will be brief with an alternative reason to allow plaintiff to file the
proposed second amended complaint. Even if plaintiff could not file as a matter
of course, “[t]he court should freely give leave when justice so requires.” FRCP
15(a)(2). “Reasons for a proper denial of leave to amend include undue delay,
bad faith, futility of the amendment, and perhaps most important, the resulting
prejudice to the opposing party. Mere delay, however, absent a showing of bad
faith or undue prejudice, does not provide a basis for a district court to deny the
right to amend.” State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d
Cir. 1981) (citations omitted). “Amendment may be prejudicial when, among
other things, it would require the opponent to expend significant additional
resources to conduct discovery and prepare for trial or significantly delay the
resolution of the dispute.” AEP Energy Servs. Gas Holding Co. v. Bank of Am.,
N.A., 626 F.3d 699, 725-26 (2d Cir. 2010) (internal quotation marks and citation
omitted).
Here, circumstances would warrant granting plaintiff leave to amend. The
proposed second amended complaint is substantially similar to the prior
complaints; the only notable changes are the addition of two defendants and the
labeling of all defendants as having acted in an individual capacity. The
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identification of individual capacity comports with what Judge Telesca already
had identified in the second screening order and creates no surprise.
Additionally, while the case has been around for a few years chronologically, it
remains procedurally in its infancy since a scheduling order never issued and
discovery never began. Cf., e.g., Hillair Capital Invs., L.P. v. Integrated Freight
Corp., 963 F. Supp. 2d 336, 339 (S.D.N.Y. 2013) (“Here, at this early stage of
the case, there is no concern about delay, bad faith, or prejudice. The critical
issue is whether the [amendment] would be futile.”); Peters v. City of Buffalo,
848 F. Supp. 2d 378, 382 (W.D.N.Y. 2012) (Skretny, C.J.) (“Defendants have
provided no grounds on which they would be prejudiced. Further, this Court
finds that at this early stage of the litigation there is no undue prejudice to
defendants that would preclude amendment of the complaint.”). As a result,
plaintiff would qualify for leave to amend even if he could not amend as a matter
of course.
C.

Motion to Dismiss (Dispositive)

Since the Court will grant plaintiff’s cross-motion to file the proposed
second amended complaint, it recommends denying defendants’ motion to
dismiss as moot. The motion to dismiss contained no arguments apart from the
argument about subject-matter jurisdiction that the second amended complaint
will obviate.

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IV.

CONCLUSION
For all the foregoing reasons, the Court grants plaintiff’s non-dispositive

cross-motion to amend. (Dkt. No. 28.) The Court respectfully recommends
denying defendants’ dispositive motion to dismiss (Dkt. No. 24) as moot.
Plaintiff will file his second amended complaint on or before April 20, 2016.
V.

OBJECTIONS
A copy of this writing will be sent to counsel for defendants by electronic

filing on the date below. The Court will mail a copy of this writing to plaintiff by
first-class mail at the address that he currently has on record: Luis A. Canales,
10A0768, GREEN HAVEN CORRECTIONAL FACILITY, Box 4000, Stormville,
NY 12582-0010. With respect to defendants’ motion to dismiss, any objections to
the recommendations herein must be electronically filed with the Clerk of the
Court within 14 days. See 28 U.S.C. § 636(b)(1); FRCP 72. “As a rule, a party’s
failure to object to any purported error or omission in a magistrate judge’s report
waives further judicial review of the point.” Cephas v. Nash, 328 F.3d 98, 107 (2d
Cir. 2003) (citations omitted).
SO ORDERED.
__/s Hugh B. Scott________
HONORABLE HUGH B. SCOTT
UNITED STATES MAGISTRATE JUDGE
DATED: February 9, 2016

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