United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang Magistrate Judge
civil action comes before the court on Defendants'
Opposed Motion for Leave to Amend Answer (“Motion to
Amend”) [#89, filed February 2, 2018]. The Motion to
Amend was referred to the undersigned Magistrate Judge
pursuant to the Order Referring Case dated January 23, 2017
[#32] and the memorandum dated February 5, 2018 [#90]. Having
reviewed the Motion to Amend and Plaintiff's response
thereto, the case file, and the applicable law, the court
respectfully RECOMMENDS that the Motion be
Daevon House initiated this lawsuit on September 26, 2016, by
filing pro se a form Prisoner Complaint asserting a
single claim pursuant to 42 U.S.C. § 1983 for deliberate
indifference in violation of his Eighth Amendment rights
under the Constitution. [#1]. He named Tara Jones and
John/Jane Doe as Defendants. The court granted Mr. House
leave to proceed in forma pauperis under 28 U.S.C.
§ 1915, [#4], and ordered him to file an amended
pleading. [#5]. On October 11, 2016, Mr. House filed an
Amended Complaint adding Defendants Ryder May and Hudson T.
White. [#6]. Following a review pursuant to
§ 1915 and Local Rule 8.1, the court reassigned the
matter to the Honorable William J. Martinez, who referred the
case to the undersigned Magistrate Judge for pretrial
management. [#7, #32]. The following facts are derived from the
House's sole claim arises from Defendant Leone's
failure in her capacity as a nurse to diagnose him with
appendicitis, which resulted in his undergoing multiple
surgeries and his requiring the use of a colostomy bag, and
Defendants May and White's subsequent failure to provide
certain medical supplies to Plaintiff, including bandages and
replacement colostomy bags. See [#6]. On January 20,
2017, Defendants Leone and May filed an Answer. See
[#27]. On February 8, 2017, this court held a Status
Conference and set certain pretrial dates, including a
deadline of May 9, 2017 by which to amend pleadings.
March 3, 2017, Mr. House submitted several medical documents
attached to a motion to supplement. See [#48-1]. The
medical documents indicate that, in December 2014, Plaintiff
complained of severe abdominal pain and was “given
fluids and returned to his unit”; was “seen
repeatedly for this issue and was eventually admitted to DH
where he was found to have sepsis, performated [sic]
appendix”; and that he thereafter underwent
“multiple abdominal surgeries…in ICU on the vent
and ended up [with] an ileostomy.” [Id.] The
medical documents further indicate that the perforated
appendix was the cause of the abdominal pain Plaintiff had
complained of when he was repeatedly returned to his cell,
and that complications, including the rupture of his
appendix, required a three-month confinement in the intensive
care unit. [Id. at 2-3].
April 4, 2018, this court granted Mr. House's motion for
appointment of counsel. See [#54, #56]. The
following day, the court held a second Status Conference at
which Plaintiff voiced his intent to supplement his complaint
and Defendants stated they did not oppose. See
[#57]. This court ordered Plaintiff to “file one
comprehensive complaint, ” on or before April 19, 2017.
[Id.] The court subsequently extended that deadline
to June 9, 2017. See [#60 at 2]. On June 13, 2017,
this court held a third Status Conference at which Plaintiff
represented his intent to proceed with the Amended Complaint,
filed October 11, 2016. [#6]. For the purpose of clarity, the
court specified June 13, 2017 as the deadline for amending
pleadings, and neither side requested an extension.
September 5, 2017, counsel entered their appearance on behalf
of Plaintiff, [#78-#80], and soon thereafter filed an
unopposed motion asking the court to extend various pretrial
deadlines. See [#82]. The motion did not seek to
extend the June 13, 2017 deadline by which to amend
pleadings. The Parties then jointly moved the court for
referral to the undersigned to hold a settlement conference.
See [#85]. The matter was set, and reset, for a
settlement conference. [#87, #88]. The settlement conference
is now scheduled for May 24, 2018. [#105].
February 2, 2018, Defendants filed the Motion to Amend
seeking to amend their Answer to add the affirmative defense
that Plaintiff failed to exhaust his administrative remedies,
stating, “Counsel recently became aware of two things
pertinent to this request to amend: (1) the original answer
filed by Defendants did not include language regarding
defenses under the Prison Litigation Reform Act (PLRA); and
(2) Defendants appear to have legitimate defenses based on
the PLRA's exhaustion requirement.” [#89 at 4].
Plaintiff filed a Response to the Motion to Amend on February
16, 2018. [#92]. Defendants did not file a Reply. On March
15, 2018, Defendants filed a Motion for Summary Judgment
asserting entitlement to qualified immunity and the defense
of failure to exhaust. See [#99].
review of Defendants' Motion for Summary Judgment, this
court discerns that the failure to exhaust defense is related
to Defendant Leone's theory that Mr. House failed to
exhaust his administrative remedies as to his allegation that
she saw him on December 10, 2014 and December 11, 2014, but
ignored his complaints and delayed sending him to a hospital
until December 17, 2014. [#99 at 31-32, #99-3 at ¶ 14].
Mr. House returned to the custody of the Colorado Department
of Corrections on January 11, 2017, and thus Defendants
contend that he could have filed his administrative grievance
within the time period required by the PLRA. [#99 at 31].
Tenth Circuit law, courts employ a two-step analysis in
determining whether to allow a party to amend the pleadings
after the deadline established by the Scheduling Order has
passed. First, the court considers whether the moving party
demonstrates good cause pursuant to Rule 16(b) of the Federal
Rules of Civil Procedure. See Gorsuch, Ltd., B.C. v.
Wells Fargo Nat'l Bank Assoc., 771 F.3d 1230, 1242
(10th Cir. 2014). If the moving party can demonstrate good
cause, the court then weighs whether the amendment should be
allowed pursuant to Rule 15(a). Id.
16(b) provides that a scheduling order “may be modified
only for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). “In practice, this standard
requires the movant to show the ‘scheduling deadlines
cannot be met despite [the movant's] diligent
efforts.'” Gorsuch, 771 F.3d at 1240
(citing Pumpco, Inc. v. Schenker Int'l,
Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). This burden
is satisfied, for example, when a party learns of new
information in a deposition or that the governing law has
changed. Id. “Rule 16(b) does not focus on the
bad faith of the movant, or the prejudice to the opposing
party. Rather, it focuses on the diligence of the party
seeking leave to modify the scheduling order to permit the
proposed amendment.” Colo. Visionary Acad. v.
Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).
15(a) provides that leave to amend “shall be freely
given when justice so requires.” Fed.R.Civ.P. 15(a).
The court may refuse leave to amend 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 amendment. Frank v.
U.S. West, Inc.,3 F.3d 1357, 1365 (10th Cir. 1993).
Whether to allow ...