Guzman v. Cockrell et al
Filing
56
MEMORANDUM OPINION AND ORDER. Plaintiff's 53 Motion to Amend Complaint is denied and the Plaintiff's 54 proposed amended complaint is stricken. Signed by Magistrate Judge Judith K. Guthrie on 11/10/11. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
VICENTE GUZMAN, #1541295
§
VS.
§
JANIE COCKRELL, ET AL.
§
CIVIL ACTION NO.9:10cv111
MEMORANDUM OPINION AND ORDER
Plaintiff Vicente Guzman (“Guzman” or “Plaintiff”), an inmate confined in the Huntsville
Unit of the Texas prison system, proceeding pro se and in forma pauperis, filed the above-styled and
numbered civil rights lawsuit under 42 U.S.C. § 1983. Though he is presently confined in the
Huntsville Unit, the events of this lawsuit took place at the Duncan Unit. The complaint was
transferred to the undersigned with the consent of the parties pursuant to 28 U.S.C. § 636(c).
On April 15, 2011, the Court issued a Memorandum Opinion and Order of Partial Dismissal
(docket entry #22). In it, the Court dismissed original Defendants Cockrell, McMullin, Self, White
and “FNU Lieutenant” for various reasons, including that Plaintiff’s assertion of “negligence” was
inapplicable in a § 1983 lawsuit; the theory of respondeat superior was also inapplicable in the §
1983 context; and that Plaintiff’s claims of deliberate indifference sounded only against Defendants
Primrose, Tobias and Smith, who are the currently-remaining Defendants in this action. On May 19,
2011, Plaintiff filed an omnibus motion aimed at the Court’s Memorandum Opinion and Order,
incorporating several motions (docket entry #27). One of the included motions was to amend
Plaintiff’s complaint. In fact, Plaintiff did file a putative amended complaint on August 8, 2011
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(docket entry #45). On September 15, 2011, the Court denied leave to file an amended complaint,
noting that after the time in which a plaintiff may amend his complaint as a matter of course, he must
obtain either the consent of the opposing party or the Court’s leave, citing Fed. R. Civ. P. 15(a)(2).
Plaintiff had not obtained the opposing party’s leave to file an amended complaint. Further, the
putative amended complaint was not on the required form for prisoner complaints filed pursuant to
42 U.S.C. § 1983. See Memorandum Opinion and Order (docket entry #45) at 3. The putative
amended complaint was ordered stricken. Id.
Plaintiff has now filed a new proposed amended complaint, naming again certain individuals
the Court has already dismissed as Defendants in its April 15, 2011, Order, and adding several new
ostensible Defendants. See docket entry #54. Although he has expanded his allegations into five
putative counts, the first three still involve the original Defendants, including those the Court has
dismissed, and sound either in negligence or simply in his extant claim of deliberate indifference.
His Count I, under the rubric of “Conditions of Confinement,” names Defendants Cockrell,
McMullen and Self. His Count II, entitled “Failure to Provide Medical Assistance,” names
Defendants Primrose, “Lieutenant John Doe” (repackaging the “FNU Lieutenant” named in and
dismissed from the original complaint). His Count III, “Failure to Provide Medical and Officer
Training,” names Defendants Tobias and Smith. His Count IV, “Intentional Interfering with
Treatment,” names a new Defendant, LVN Armstrong, but again is merely a claim for deliberate
indifference. Finally, his Count V, “Retaliatory Treatment,” adds Warden Motal and the “Unit
Classification/Special Management Committee,” and contends that he was held at the Michael Unit
in administrative segregation during the time of his Spears hearing with this Court in March 2011,
in retaliation for his grievances. The latter two claims involve new individuals or claims; the first
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three make essentially the same allegations against the same individuals as included in the original
complaint.
Plaintiff concurrently filed a Motion for Leave to File a Supplemental Complaint, docket
entry #53, which the Court construes as a motion for leave to file an amended complaint pursuant
to Fed. R. Civ. P. 15(a)(2). Plaintiff still has not obtained the opposing party’s leave to file an
amended complaint and in fact, Defendants have filed a Response in Opposition (docket entry #55).
He has, however, conformed to the form-filing requirements set in the Court’s September 15, 2011,
Order.
As noted above, a party may amend its pleadings once as a matter of course, if within 21 days
after serving or within 21 days after service of a responsive pleading or a motion under Rule 12(b),
(e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). Thereafter, pleadings may be amended
“only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The
Court should consider factors such as “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”
Overseas Inns S.A. PA. v. United States, 911 F.2d 1146, 1150-51 (5th Cir.1990); Rosensweig v.
Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.
Ct. 227, 9 L. Ed. 2d 222 (1962)). In the absence of any of these reasons, leave should be “freely
given.” Foman, 371 U.S. at 182; Fed.R.Civ.P. 15(a)(2). Rule 15(a) “evinces a bias in favor of
granting leave to amend.” Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United States
of America Co., 195 F.3d 765, 770 (5th Cir. 1999) (quoting Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 597 (5th Cir. 1981)). “Leave to amend, however, is by no means automatic,” Little v.
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Liquid Air Corp., 952 F.2d 841, 845-46 (5th Cir.1992), rev’d on other grounds, 37 F.3d 1069 (5th
Cir. 1994), and the Court’s discretion may rest on the factors enumerated above.
Here, Plaintiff has given no reasons in his motion for leave to amend why he should be
allowed to do so, other than to cite Forman, supra, and Interroyal Corp. v. Sponseller, 889 F.2d 108,
112 (6th Cir. 1989), cert. denied, 494 U.S. 1091, 110 S. Ct. 1839, 108 L. Ed. 2d 967 (1990). These
authorities are well-represented by the recitation above.
Defendants oppose on the basis of the factors stated above, notably because they assert
undue delay, undue prejudice on them and because the proposed amendments are futile. See
Opposition at 3-4. The Court is of the opinion that the Defendants are correct.
First, Plaintiff has waited for over a year to add the individuals and claims he purports to
present in his amended complaint. Even the new retaliation claim allegedly occurred in the March
2011 timeframe. As noted above, Plaintiff did previously file a motion for leave to amend and also
filed a putative amended complaint. However, he did not present any cogent reasons for the
amendments that he posed at that time. In fact, they did little other than to return to Plaintiff’s
complaint those individuals the Court had previously dismissed. The verbiage he added to the
existing allegations still consisted of a claim for negligence, which the Court previously observed
has no basis in a § 1983 lawsuit; and failure to provide medical assistance. That putative amendment
was ordered stricken, as explained above. Plaintiff could have named the individuals and allegations
of his current proposed amended complaint at that time and offered an explanation as to why the
amendment should be allowed. He did not, and still has not done so. That is undue delay.
Rosensweig, 332 F.3d at 864; Little, 952 F.2d at 846. Furthermore, his attempt to again add the
individuals previously dismissed from this action back into his lawsuit on little more than an
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expanded restatement of his original allegations is not a good faith effort to amend. Id.
Second, the Court issued a Scheduling Order setting November 15, 2011, as the deadline for
the parties to file any summary judgment motions. That is nearly 15 months after Plaintiff originally
filed this lawsuit, which gave Plaintiff more than enough time to develop any additional claims he
had. The Court notes that Defendants made their required disclosures on or before June 21, 2011
(see docket entry #37), including nearly 190 pages of business records, grievance reports,
classification records and medical records spanning the period of his lawsuit up to May 2011. Any
new claims represented in Plaintiff’s proposed amended complaint should have been presented at
that time with either a concurrence by Defendants for filing or an argument to this Court why the
amendment should have been allowed. Although Defendants also made a supplemental disclosure
on September 27, 2011, that disclosure involved only four pages of material covering the span of a
day in May 2010 and cannot have included sufficient material to have justified the scope of
amendments Plaintiff seeks to file now. Defendants assert that they have in good faith prepared their
summary judgment motion for timely filing in accordance with the Court’s Scheduling Order, based
on the allegations of Plaintiff’s original complaint. Opposition at 4. Allowing the amendment
Plaintiff proposes now would unduly prejudice Defendants and jeopardize their good faith, timely
summary judgment presentation. Rosensweig, 332 F.3d at 864; Little, 952 F.2d at 846.
Finally, as Defendants point out, the amendments Plaintiff seeks would be futile if allowed.
The Court has already dismissed former Defendants Cockrell, McMullin, Self, White and “FNU
Lieutenant” (apparently named in the proposed amended complaint as “Lieutenant John Doe”).
Despite Plaintiff’s attempts to repackage his allegations, they still amount to essentially the same
claims against these individuals as he previously brought. The reasons for the Court’s dismissal of
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them still pertain, see Order of April 15, 2011, and would even if the amended complaint were
allowed. Therefore, allowing the amendment that Plaintiff seeks would be futile with regard to these
claims and individuals.
As to the remainder of Plaintiff’s proposed amendments, Defendants have offered Exhibit
A to their Opposition, consisting of Plaintiff’s grievance records for the timeframes involved.
Exhibit A demonstrates that Plaintiff did not file both a Step 1 and Step 2 grievance concerning his
retaliation claim, nor did he state any allegations pertaining to any of the putative Defendants named
in proposed Courts IV and V. Therefore, Defendants assert, Plaintiff should not be allowed to make
these amendments because they would be futile due to his failure to exhaust his grievances
administratively. The law governing the exhaustion of administrative remedies is 42 U.S.C. § 1997e.
In 1996, Congress enacted the Prison Litigation Reform Act, which mandated that no action shall
be brought by a prisoner “until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). The Supreme Court accordingly unanimously concluded that inmates must
exhaust their administrative remedies before proceeding to federal court. Booth v. Churner, 532 U.S.
731, 741, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). The Supreme Court subsequently held that
exhaustion is mandatory and is required for all actions brought by prisoners. Porter v. Nussle, 534
U.S. 516, 524, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002). Later, the Supreme Court reiterated that
exhaustion is mandatory and will not be excused when an inmate fails to timely exhaust his
administrative remedies. Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 165 L. Ed. 2d 368
(2006). Exhaustion also requires that a prisoner satisfy the requirement of “proper exhaustion.” Id.
at 83. Most recently, the Supreme Court stated in Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910,
166 L. Ed. 2d 798 (2007), that “[t]here is no question that exhaustion is mandatory under the PLRA
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and that unexhausted claims cannot be brought in court.” However, “failure to exhaust is an
affirmative defense under the PLRA, and [ ] inmates are not required to specifically plead or
demonstrate exhaustion in their complaints.” Id. at 216. Subsequently, the Fifth Circuit added that
after Jones v. Bock, a complaint is still subject to dismissal for failure to state a claim where the
prisoner’s failure to exhaust appeared on the face of the complaint. Carbe v. Lappin, 492 F.3d 325,
328 (5th Cir. 2007); Torns v. Mississippi Dept. of Corrections, 301 Fed. Appx. 386, 388-89 (5th Cir.
2008) (per curiam). Here, Defendants affirmatively argue lack of exhaustion and support their
argument with Exhibit A. There is no dispute that the TDCJ grievance process requires two steps
to exhaust and it appears from Exhibit A that Plaintiff has not done so, or has not initiated the
process with regard to some of the proposed Defendants. For this additional reason, Plaintiff’s
proposed amended complaint would be futile and the Court will not grant leave for its filing.
Rosensweig, 332 F.3d at 864; Little, 952 F.2d at 846.
It is therefore
ORDERED that Plaintiff’s Motion to Amend Complaint (docket entry #53) is DENIED.
It is further
ORDERED that Plaintiff’s proposed amended complaint at docket entry #54 is
STRICKEN.
So ORDERED and SIGNED this 10 day of November, 2011.
____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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