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House v. Leone

United States District Court, D. Colorado

April 5, 2018

DAEVON HOUSE, Plaintiff,
v.
TARA LEONE, in her individual capacity RYDER MAY, in his individual capacity, HUDSON T. WHITE, in his individual capacity, and UNKNOWN JOHN/JANE DOEs, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Nina Y. Wang Magistrate Judge

         This 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 DENIED.

         BACKGROUND

         Plaintiff 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.[1] [#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].[2] The following facts are derived from the Amended Complaint.

         Mr. 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. See [#41].

         On 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].

         On 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. See [#70].

         On 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].

         On 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].

         Upon 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].

         STANDARD OF REVIEW

         Under 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.

         Rule 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).

         Rule 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 ...


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