United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion
for Leave to Amend Complaint [#125] (the
“Motion”). Defendants filed a Response [#133] in
opposition to the Motion [#125]. No. Reply was timely
filed. Plaintiff proceeds in this matter as a pro
se litigant. 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. 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
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].
Standard of Review
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).
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.
Request for Leave to Amend
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).
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).
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.
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 ...