Williams-Berrien v. Wilson

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion for Leave to Amend Complaint [#125]^[1] (the “Motion”). Defendants filed a Response [#133] in opposition to the Motion [#125]. No. Reply was timely filed.^[2] Plaintiff proceeds in this matter as a pro se litigant.^[3] Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion [#125] has been referred to the undersigned for recommendation.^[4] See [#126]. The Court has reviewed the Motion [#125], the Response [#133], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#125] be DENIED.

         I. Background

         On May 4, 2015, Plaintiff filed this lawsuit. Compl. [#1]. On October 13, 2015, Plaintiff filed an Amended Complaint [#33]. Defendants subsequently filed a Motion to Dismiss the Amended Complaint [#39]. The Court granted in part and denied in part the Motion to Dismiss the Amended Complaint [#39], leaving only excessive force claims against Defendants Wilson and Petree. Order [#49] at 3. Defendants then filed a Motion for Summary Judgment [#78] on August 21, 2017. The Motion for Summary Judgment [#78] was denied without prejudice because Plaintiff's Motion to Compel [#109] had not yet been fully briefed and Defendants had not yet produced relevant evidence which Plaintiff sought in discovery. Order [#116] at 1. Following the production of the evidence, Plaintiff filed the present Motion [#125] seeking to amend the Amended Complaint [#33].

         II. Standard of Review

         “After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Fed.R.Civ.P. 16(b)(4); and (2) satisfaction of the Rule 15(a) standard.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)) (internal quotations omitted); see, e.g., Petekeiwicz v. Stembel, No. 13-cv-1865-RM-KLM, 2015 WL 1740386, at *4 (D. Colo. Apr. 14, 2015); Nicastle v. Adams Cty. Sheriff's Office, No. 10-cv-816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar. 14, 2011), adopted by 2011 WL 1464588 (D. Colo. Apr. 18, 2011); Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 688 (D. Colo. 2000). If the movant meets the Rule 16(b)(4) good cause standard and the Rule 15(a) standard to amend the pleadings, the movant has met the requirements to amend the pleadings. Birch, 812 F.3d at 1247. However, if a plaintiff fails “to show good cause under Rule 16(b), there is no need for the Court to move on to the second step of the analysis, i.e., whether [a plaintiff has] satisfied the requirements of Rule 15(a).” Carriker v. City & Cty. of Denver, Colo., No. 12-cv-02365-WJM-KLM, 2013 WL 2147542, at *2 (D. Colo. May 16, 2013) (citing Nicastle, 2011 WL 1465586, at *3).

         If a party has met the Rule 16(b)(4) good cause standard, the Court has discretion to grant a party leave to amend its pleadings pursuant to Rule 15(a). See Foman v. Davis, 371 U.S. 178, 182 (1962); Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). “In the absence of any apparent or declared reason-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 the amendment, etc.-the leave sought should, as the rules require, be ‘freely given.'” Foman, 371 U.S. at 182.

         III. Analysis

         A. Request for Leave to Amend

         The first issue to address is the timeliness of the Motion [#125]. See Carriker, 2013 WL 2147542, at *1. There was no deadline set for joinder of parties and amendment of pleadings at the Scheduling Conference. See Minute Entry [#52]. Thus, the Court finds that the amendment is timely. See Carriker, 2013 WL 2147542, at *1. Therefore, the Court turns to Rule 15(a)(2).

         1. Futility

         Defendants argue in part that leave to amend should not be granted because Plaintiff's new claims are futile. Response [#133] at 4. It is well settled that a proposed amendment is futile only if the complaint, as amended, would not survive a motion to dismiss. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cty. Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999)). “In ascertaining whether plaintiff's proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff, and the allegations in the complaint must be accepted as true.” Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, “[a]ny ambiguities must be resolved in favor of plaintiff, giving him the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in his complaint.” Id. (quotations omitted).

         In the Proposed Second Amended Complaint [#129], Plaintiff brings eleven claims for relief. As an initial matter, claims two and five appear to be functionally the same claims as the remaining claims already asserted against Defendants Wilson and Petree, i.e., claims for excessive force in relation to Defendant Wilson allegedly tasing Plaintiff and Defendant Petree allegedly placing Plaintiff in a leg lock. See generally Am. Compl. [#33]. Plaintiff alleges that “[Defendant] Wilson needlessly TASED Plaintiff” and that “[Defendant] Petree applied the painful leg lock on Plaintiff while he was effectively subdued.” Second. Am. Compl. [#129] at 23, 26 (emphasis in original). These are the same facts that underlie the remaining excessive force claims against Defendants Wilson and Petree in the First Amended Complaint [#33]. Thus, because the second and fifth claim for relief are entirely duplicative of claims that have already been brought against Defendants, the Court treats them accordingly.

         With regard to the fifth claim for relief, the Court notes that in the Proposed Second Amended Complaint, Plaintiff alleges that Defendant Petree's actions were in violation of the Fifth Amendment. [#129] at 26. However, because the claim is functionally the same as the one already brought against Defendant Petree, and because the Court has already stated that “the appropriate excessive force analysis is pursuant to the Fourth Amendment, and only the Fourth Amendment, ” the Court treats Plaintiff's fifth claim for relief as being brought pursuant to the Fourth Amendment. See Recommendation [#48] at 9. Regardless, to the extent Plaintiff's claim is brought pursuant to the Fifth Amendment, the claim would still be futile because the Fifth Amendment ...