Cody v. McDonald et al
OPINION AND ORDER adopting 99 Order denying 87 Motion to Amend/Correct, overruling 107 Objection re 99 Order on Motion to Amend/Correct. Signed by U.S. District Judge Roberto A. Lange on 1/6/2017. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
JAN 06 2017
OPINION AND ORDER ADOPTING
OFFICIAL CAPACITY; HEATHER BOWERS,
ORDER DENYING MOTION TO AMEND
INDIVIDUAL AND OFFICIAL CAPACITY;
JESSICA STEVENS, INDIVIDUAL AND
OFFICIAL CAPACITY; LINDA MILLER-
HUNOFF, INDIVIDUAL AND OFFICIAL
INDIVIDUAL AND OFFICIAL CAPACITY;
Plaintiff William Cody, an inmate at the South Dakota State Penitentiary(SDSP), filed a
pro se eomplaint in October 2014, alleging that certain SDSP officials had violated his
constitutional rights. Doe. I. Cody filed a verified supplemental complaint in December 2014.
Doc. 12. In January 2015, Defendants moved to dismiss Cody's complaint for failure to state a
claim Doe. 19. While that motion was pending, Cody moved for summary judgment on all of
his claims. Doe. 26.
Magistrate Judge Veronica Duffy issued a report and recommendation recommending
that Defendants' motion to dismiss be denied, Doe. 31, which this Court adopted, Doc. 44. In
mid-March 2015, Defendants answered Cody's eomplaint and moved for summary judgment on
all of his claims. Docs. 40, 41. Thereafter, Judge Duffy recommended that Cody's motion for
summary judgment be denied in its entirety and that Defendant's motion for summary judgment
be granted on all of Cody's claims except Claim 3, Cody's claim that Defendants violated his
rights under the First and Fourteenth Amendments by interfering with his mail. Doc. 58. Both
parties objected to this recommendation, but this Court overruled the objections and adopted the
recommendation in full on March 14, 2016. Doc. 65.
On March 17, 2016, Judge Duffy issued a Rule 16 scheduling order setting April 15,
2016 as the deadline for amending pleadings and joining parties; July 15, 2016 as the discovery
deadline; and September 1, 2016 as the deadline for motions on Cody's remaining claim. Doc.
66. On Cody's motion. Doc. 68, Judge Duffy extended the deadline for amending pleadings and
adding parties to June 27, 2016, Doc. 77. On June 13, 2016, Cody filed a second motion to
extend deadlines, this time asking the court to extend all deadlines for an "additional unspecified
time." Doc. 78. Judge Duffy ultimately granted this motion in part, extending the discovery
deadline to November 15, 2016, and the motions deadline to December 15, 2016. Doc. 94.
Judge Duffy did not extend the deadline to amend pleadings and add parties, so the old June 27,
2016 deadline remained in place.
On September 13, 2016, Cody filed a motion to amend his complaint along with a
proposed amended complaint. Docs. 87, 87-1. Cody's proposed amended complaint seeks to
add four new defendants (Sharon Reiman, Catherine Schlimgen, Dennis Kaemingk, and Knstine
Weirsma), to expand Claim 3 to include a procedural due process claim and an equal protection
claim, and to add three completely new claims, each of which allege multiple constitutional
violations. Doc. 87-1. Defendants opposed Cody's motion to amend, arguing that Cody's
motion was untimely, that he has failed to show good cause for missing the deadline to amend,
and that his amendments are futile. Doe. 90.
Judge Duffy denied Cody's motion to amend on November 23, 2016, concluding that the
motion failed under both Rules 15 and 16 of the Federal Rules of Civil Procedure. Doe. 99 at
11-13. On December 15, 2016, Defendants filed a renewed motion for summary judgment on
Cody's Claim 3. Docs. 100-104. Cody on December 16, 2016 moved for an extension of time
to file objections to Judge Duffy's order denying Cody's motion to amend. Doc. 105. This
Court granted Cody more time to file such objections. Doc. 106, and Cody has now filed
objections to Judge Duffy's order denying his motion to amend. Doe. 107.
This Court reviews a report and recommendation pursuant to the statutory standards
found m 28 U.S.C. § 636(b)(1), which provides in relevant part that "[a] judge of the [district]
court shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." "In the absence of an objection, the
district court is not required 'to give any more consideration to the magistrate's report than the
court considers appropnate.'" United States v. Murrillo-Figueroa. 862 F. Supp. 2d 863, 866
(N.D. Iowa 2012) (quoting Thomas v. Am, 474 U.S. 140, 150 (1985)). This Court has
conducted a de novo review of the record, and for those reasons explained below, this Court
overrules Cody's objections and adopts Judge Duffy's order.
Cody's motion to amend implicates Rules 15 and 16 of the Federal Rules of Civil
Procedure. Rule 15 ordinarily governs motions to amend the pleadings. After the twenty-one-
day period in Rule 15(a)(1) has expired, a party may amend its pleadings under Rule 15(a)(2)
"only with . . . the court's leave." Fed. R. Civ. P. 15(a)(2). Although Rule 15 provides that
courts "should freely give leave [to amend] when justiee so requires," Fed. R. Civ. P. 15(a)(2), a
court "may properly deny a party's motion to amend its complaint when sueh amendment would
unduly prejudiee the non-moving party," Popoalii v. Corr. Med. Servs.. 512 F.3d 488, 497 (8th
Cir. 2008). Whether undue prejudice exists depends on the facts of the ease but a leading treatise
on civil procedure provides some examples:
[I]f 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 signifieant new
preparation, the court may deem it prejudieial. In a similar vein, if
the court determines that the proposed amendment would result in
defendant being put to added expense and the burden of a more
eomplieated and lengthy trial or that the issues raised by the
amendment are remote from the other issues in the ease and might
eonfiise or mislead the jury, leave to amend may be denied.
6 Charles Alan Wright et ah. Federal Practice and Proeedure § 1487(3d ed.)(footnotes omitted).
These examples are consistent with Eighth Circuit case law. See Popoalii. 512 F.3d at 497
("When late tendered amendments involve new theories of reeovery and impose additional
discovery requirements, appellate courts are less likely to hold a district court abused its
diseretion."); Popp Telecom v. Am. Shareeom. Inc.. 210 F.3d 928, 943 (8th Cir. 2000)("Where
an amendment would likely result in the burdens of additional discovery and delay to the
proceedings, a court usually does not abuse its discretion in denying leave to amend."); BCinkead
V. Sw Bell Tel. Co.. 49 F.3d 454, 456 (8th Cir. 1995)(holding that the distriet court properly
denied motion to amend complaint where motion was filed two years after initial complaint and
sought to add new elaims and an additional party rather than to modify initial claim); Wishon v.
Gammon. 978 F.2d 446, 448 (8th Cir. 1992)(concluding that the distnct eourt did not abuse its
discretion by denying prisoner's motion to file an amended complaint containing a new claim
where new claim was unrelated to initial claims and prisoner was not prejudiced by the denial
because he could raise the new claim in a different suit).
Rule 16(b) concerns the district court's setting of pretrial schedules. It provides that
"[ejxeept in categories of actions exempted by local rule, the district judge—or a magistrate
judge when authorized by local rule—^must issue a scheduling order" limiting "the time to join
other parties, amend the pleadings, complete discovery, and file motions." Fed. R. Civ. P.
16(b)(1), (3)(A). A scheduling order issued under Rule 16 "may be modified only for good
cause and with the judge's consent." Id. § 16(b)(4). When a party moves to amend after the
deadline established by the scheduling order has expired, the party's motion is governed by the
good-cause standard in Rule 16 rather than by "the more liberal standard of Rule 15(a)."
Sherman v. Wmeo Fireworks. Inc.. 532 F.3d 709, 716 (8th Cir. 2008). "The primary measure of
good cause is the movant's diligence in attempting to meet the [scheduling] order's
requirements." Id at 716 (quotation omitted). Prejudice to the non-movant is also relevant to
the good-cause analysis, but only if the movant can show diligence. Id at 717; see also Popoalii.
512 F.3d at 497 (explaining that the party moving to amend outside the scheduling order bears
the burden of showing good cause).
Here, Cody did not move to amend his complaint until September 13, 2016, which is over
two months after the June 27, 2016 deadline for amending pleadings and adding parties. Thus,
Cody must satisfy the good-cause standard of Rule 16, beginning by showing that he was
diligent. The main reason Cody offers for the delay in amending his complaint is that it was
difficult to get the information he needed from Defendants through discovery. But Judge Duffy
granted Cody's motion to extend the deadline for joining parties and amending the complaint
until June 27, 2016, so that Cody could engage in discovery to determine the names of other
individuals who may have handled his mail. And it appears that Cody knew of the four new
defendants in his amended complaint and their involvement with his mail well before he filed his
amended complaint in September 2016.
Doc. 78; Doc. 79-3; Doe. 79-4; Doc. 88 at 3; Doc.
88-2. The same is true with respect to the Defendants' policies, which form the basis ofsome of
the new claims Cody raises m his amended complaint; Cody had access to these policies well in
advance of September 2016. See Doc. 42-1; Doc. 42-2; Doc. 79-4; Doc. 83 at 6. This Court
agrees with Judge Duffy that Cody has not shown diligence.
Even if Cody had shown diligence, this Court would deny his motion to amend. The
parties have already briefed, and this Court has already decided, a motion to dismiss and two
motions for summary judgment. A renewed motion for summary judgment is currently pending
on Cody's Claim 3, which concems the narrow issue of whether Defendants violated Cody's
First Amendment rights by interfering with a medical report his doctor mailed him on three
separate occasions between March 28, 2014 and May 30, 2014. Cody's amended complaint,
however, seeks to add four new defendants to Claim 3 and expand the constitutional bases for
this claim to include a procedural due process claim and an equal protection claim.^ Cody's
amended complaint also seeks to add three brand new claims alleging sundry constitutional
violations. The new claims mostly concern events occurring between May 30, 2014 and July
2016. Allowing Cody's amended complaint would prejudice Defendants because they would
need to engage in a significant amount of new preparation, including additional discovery. It
would also cause undue delay. This case is fairly straightforward and although it has been
pending for over two years now, discovery just recently concluded. Granting Cody's motion to
'Cody's initial Claim 3 alleged that Defendants had violated his First and Fourteenth
Amendment rights, hut he did not specifically allege a procedural due process or equal protection
claim. Doc. 1.
amend when doing so would prejudice Defendants and delay resolution of the one remaining
claim in this ease would be inconsistent with the requirement that the Federal Rules of Civil
Procedure be construed "to secure the just, speedy, and inexpensive determination of every
action and proceeding." Fed. R. Civ. P. 1.
For the reasons stated above, it is hereby
ORDERED that Plaintiffs Objections to the Order Denying his Motion to Amend, Doc.
107, are overruled. It is further
ORDERED that the Order Denying Plaintiffs Motion to Amend Complaint, Doc. 99, is
DATED this 6*^ day of January, 2017.
BY THE COURT:
ROBERTO A. LANGI
UNITED STATES DISTRICT JUDGE
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