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Faircloth v. Hickenlooper

United States District Court, D. Colorado

March 1, 2019

JAMES ARTHUR FAIRCLOTH, Plaintiff,
v.
JOHN HICKENLOOPER, et al., Defendants.

          ORDER

          Scott T. Varholak United States Magistrate Judge

         This matter is before the Court on Plaintiff's Motion for Leave to File an Amended Complaint (the “Motion to Amend”) [#91] and three separate motions to dismiss filed by the defendants who have appeared in this litigation (collectively referred to herein as the “Motions to Dismiss”) [#57, 67, 68]. All four motions have been referred to this Court. [#58, 69, 92] This Court has carefully considered the motions, related briefing, the case file, and the applicable case law, and has determined that neither oral argument nor further briefing would materially assist in the disposition of the instant motions.[1] For the following reasons, the Court GRANTS the Motion to Amend and DENIES WITHOUT PREJUDICE the Motions to Dismiss.

         I. BACKGROUND

         Plaintiff initiated this action pro se on May 22, 2018, by filing a Prisoner Complaint asserting claims pursuant to 42 U.S.C. § 1983 against various Colorado officials and prison officials and medical staff based upon their alleged failure to provide Plaintiff adequate medical care for Hepatitis C.[2] [#1] Plaintiff filed an amended complaint on June 1, 2018 and, following an order of the Court directing Plaintiff to cure deficiencies, on July 2, 2018, Plaintiff filed the Second Amended Prisoner Complaint, which is the current operative complaint. [#6, 7, 9] The Second Amended Complaint asserts the following four claims for relief: (1) deliberate indifference to a serious medical condition in violation of the Eighth Amendment, (2) supervisory liability for deliberate indifference to a serious medical condition in violation of the Eighth Amendment, (3) violations of the Eighth and Fourteenth Amendments based upon defendants presenting Plaintiff with a “Hobson's Choice” with regard to medical treatment, and (4) violations of the Americans with Disabilities Act and the Rehabilitation Act. [#9] On August 2, 2018, Magistrate Judge Gordon P. Gallagher issued an Order finding that “this case does not appear to be appropriate for summary dismissal” and drawing the case to a presiding judge. [#10]

         On October 11, 2018, Defendant Correctional Health Partners, Inc. (“CHP”) and Defendant “John or Jane Doe” Director of CHP (collectively, the “CHP Defendants”) filed a motion to dismiss all of Plaintiff's claims asserted against them. [#57] On October 24, 2018, Defendants Louis Cabiling and Judy Brizendine filed a motion to dismiss all of Plaintiff's claims asserted against them.[3] [#67] On that same day, Defendants John Hickenlooper, Rick Raemisch, Susan Tiona, William Frost, Renae Jordan, Helene Christner, and Robert Magnuson filed a separate motion to dismiss all of Plaintiff's claims asserted against them.[4] [#68]

         On November 19, 2018, this Court stayed discovery pending resolution of defendants' pending motions to dismiss. [#76] On February 4, 2019, Plaintiff filed a consolidated response to the Motions to Dismiss. [#89] Contemporaneously, Plaintiff also filed the Motion to Amend. [#91] On February 5, 2019, the Court set an expedited briefing schedule for the Motion to Amend and “sua sponte extend[ed] the deadline for Defendants to file replies in support of their pending motions to dismiss until a date to be reset after briefing on the Motion to Amend is complete.” [#94] On February 19, 2019, the CHP Defendants and Defendants Cabiling and Brizendine filed separate replies in support of their motions to dismiss. [#101, 102] On that same date, the CHP Defendants and Defendants Cabiling and Brizendine filed a joint response in opposition to the Motion to Amend. [#103] On February 21, 2019, the State Defendants filed their response to the Motion to Amend, informing the Court that they “do not oppose Plaintiff's [M]otion to [A]mend and will address any deficiencies through a motion filed pursuant to Fed.R.Civ.P. 12.” [#105]

         II. ANALYSIS

         Through the Motion to Amend, Plaintiff seeks leave to file his proffered Third Amended Prisoner Complaint (the “Proposed Third Amended Complaint”).[5] [#91, 91-1] Plaintiff contends that the Proposed Third Amended Complaint is offered “in response to [the] Motion[s] to Dismiss.” [#91] Specifically, Plaintiff contends that the Proposed Third Amended Complaint: (1) “incorporate[s] the continued violation doctrine;” (2) revises the requested damages to reflect “the alleged treatment [Plaintiff] was given from July 11, 2018 - October 2, 2018;” and (3) states Plaintiff's claims “more precisely[, ] staying on point w[ith] [the] policy of non-medical exclusion criteria being utilized as denial of prompt treatment of Health Services to the Plaintiff” and “adjust[s]” the request for injunctive relief. [Id.] The Proposed Third Amended Complaint also would add six additional defendants. [Compare #9 with #91-1]

         Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court is to freely allow amendment of the pleadings “when justice so requires.” The grant or denial of an opportunity to amend is within the discretion of the Court, but “outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Refusing leave to amend is generally only justified 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).

         As noted above, the State Defendants do not oppose the Motion to Amend but rather reserve their rights to challenge any deficiencies in the Proposed Third Amended Complaint through a motion to dismiss. [#105] The CHP Defendants and Defendants Cabiling and Brizendine (collectively, the “Opposing Defendants”) argue that the Motion to Amend should be denied because the Motion to Amend and the Proposed Third Amended Complaint “exhibit undue delay, failure to cure deficiencies by prior amendment, undue prejudice to the [Opposing Defendants], and futility of amendment.” [#103 at 5]

         The Opposing Defendants devote most of their response to arguing that Plaintiff's attempt to amend the operative complaint would be futile. [Id. at 6-10] “An amendment is futile only if it would not survive a motion to dismiss.” Bituminous Cas. Corp. v. Hartford Cas. Ins. Co., No. 12-cv-00043-WYD-KLM, 2013 WL 6676157, at *2 (D. Colo. Dec. 18, 2013) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). Here, the Proposed Third Amended Complaint is offered, in part, as a response to Defendants' pending Motions to Dismiss and purportedly seeks to clarify Plaintiff's allegations and address the Opposing Defendants' argument in their motions to dismiss that the continuing violation doctrine does not apply. [#91]

         To the extent the Opposing Defendants believe the allegations against them remain deficient, the Court finds that such arguments would be better and more efficiently addressed through motion(s) to dismiss the Proposed Third Amended Complaint. See Stender v. Cardwell, No. 07-cv-02503-WJM-MJW, 2011 WL 1235414, at *3 (D. Colo. Apr. 1, 2011); see also Gen. Steel Domestic Sales, LLC v. Steelwise, LLC, No. 07-cv-01145- DME-KMT, 2008 WL 2520423, at *4 (D. Colo. June 20, 2008) (noting that defendant's futility argument “seems to place the cart before the horse”). “Accordingly, the Court- preserving its scarce resources-will not at this time consider the question whether the amendments should be denied on grounds of futility because they fail to state plausible claims for relief. The Court will consider that question if and when Defendants file a motion to dismiss on those grounds.” Stender, 2011 WL 1235414, at *3. The Court finds this approach particularly valuable in preserving judicial resources here, where only a subset of the defendants opposes the Motion to Amend on futility grounds and where Plaintiff also seeks leave to add additional defendants on whose behalf no futility argument has been offered.

         The Opposing Defendants also argue that Plaintiff unduly delayed seeking leave to file the Proposed Third Amended Complaint. Regarding undue delay, the Opposing Defendants argue only that Plaintiff has known about the involvement of the Opposing Defendants in the events giving rise to this case since at least May 20, 2016. [#103 at 8, 9] The analysis of undue delay in the context of a motion for leave to amend, however, focuses on the delay in the moving party seeking leave to amend-not the delay in originally filing the lawsuit. Here, Plaintiff's Motion to Amend was filed contemporaneously with his response to the Motions to Dismiss and is sought, in part, to respond to arguments made by Defendants in their Motions to Dismiss. In addition, Plaintiff seeks leave to amend to account for new facts relevant to his claims that arose after the filing of the operative complaint-i.e., treatment for Hepatitis C that he received from July 11, 2018 through October 2, 2018. The Court thus does not find undue delay in the filing of the Motion to Amend.

         The Opposing Defendants further contend that the Motion to Amend should be dismissed because Plaintiff failed to cure deficiencies by prior amendment. The Opposing Defendants, however, fail to offer any argument in support of this contention. Instead, the Opposing Defendants merely point out that Plaintiff twice amended his complaint in the 16-cv-2929 Action and has already amended his complaint once in this action, thus making the Proposed Third Amended Complaint his sixth complaint asserting claims regarding the treatment of his Hepatitis C. [#103 at 10] The Opposing Defendants, however, fail to identify how the proposed amendments relate to deficiencies identified in Plaintiff's prior complaints. The Court observes that the merits of the motions to dismiss filed in the 16-cv-2929 Action were never addressed by the Court since the lawsuit was dismissed for failure to prosecute. ...


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