United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR LEAVE TO AMEND COMPLAINT (DKT. #47)
Reid Neureiter, United State Magistrate Judge.
case is before the Court pursuant to an Order (Dkt. #56)
issued by Judge Raymond P. Moore referring pro
Plaintiff Kristopher Hancock's Motion for Leave to Amend
Complaint. (Dkt. #47.) The Court held a hearing on March 7,
2019 on the various motions filed by Mr. Hancock, including
the subject motion. (Dkt. #67.) The Court has taken judicial
notice of the Court's file, considered the applicable
Federal Rules of Civil Procedure and case law, and makes the
Hancock initiated this prisoner civil rights case on
September 19, 2017. His original complaint asserted claims
under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 against
eight defendants, alleging violations of his rights under the
First, Eighth, and Fourteenth Amendments after he was denied
kosher meals and forced to shave his beard while incarcerated
at the El Paso County Jail and the Denver Reception and
Diagnostic Center (“DRDC”), a facility operated
by the Colorado Department of Corrections
(“CDOC”). (See generally Dkt. #1.) On
November 3, 2017, Magistrate Judge Gordon P. Gallagher
directed Mr. Hancock to file an amended prisoner complaint
that adequately asserted personal participation by all named
defendants. (Dkt. #10.) Mr. Hancock filed an Amended Prisoner
Complaint (the “Complaint”) on December 5, 2017,
asserting claims against four defendants. (Dkt. #11.) On
December 11, 2017, Judge Gallagher issued a Second Order
Directing Plaintiff to File Amended Complaint (Dkt. #12),
wherein he instructed Mr. Hancock to further amend his
Complaint to properly allege personal participation as to the
individual defendants and municipal liability against El Paso
County. (Dkt. #12.) Mr. Hancock failed to file a Second
Amended Complaint within the time allowed. Rather than
dismissing the entire action, Judge Lewis T. Babcock
dismissed Mr. Hancock's claims against two defendants,
and the remaining claims against Defendants Porcher and Cirbo
were drawn to Judge Moore and Magistrate Judge Watanabe.
(Dkt. #13.) When Magistrate Judge Watanabe retired, the case
was assigned to me. (Dkt. #33.)
April 4, 2018, Defendants moved to dismiss Mr. Hancock's
Amended Complaint. (Dkt. #23.) In his response to that motion
(Dkt. #30), Mr. Hancock explained that his Eighth Amendment
claim is based on unsanitary conditions and inadequate
medical care. Mr. Hancock claims he had a scabies infestation
that was not properly diagnosed or treated.
December 14, 2018, the Court recommended that Mr.
Hancock's First Amendment claim predicated on the denial
of kosher meals should go forward, but that the First
Amendment claim related to the shaving of Mr. Hancock's
beard, the Eighth Amendment claim described above, and the
claim brought pursuant to the Fourteenth Amendment should be
dismissed. (Dkt. #36.) While Mr. Hancock objected to that
Report and Recommendation, he conceded that, besides the
First Amendment claim that survived, he had failed to state
any other plausible claim. (Dkt. #38.) Instead, he argued
that he should be permitted to amend his Complaint. Thus, on
February 19, 2019, Mr. Hancock moved to file a Second Amended
Complaint. (Dkt. #47.) Defendants objected to the motion,
arguing that it was both untimely and futile. They also
pointed out that Mr. Hancock did not comply with
D.C.COLO.LCivR 15.1(b) because he did not include a proposed
Second Amended Complaint.
March 7, 2019, the Court heard argument on this and other
motions filed by Mr. Hancock and took the motion to amend
under advisement. (Dkt. #67.) Mr. Hancock was ordered to
reply to Defendants' response no later than March 26,
2019. (Id.) Instead of filing a reply, Mr. Hancock
filed a proposed Second Amended Complaint, which the Court
will discuss below.
March 26, 2019, Judge Moore adopted in full the
undersigned's December 14, 2018 Report and
Recommendation. (Dkt. #75.) However, Mr. Hancock's motion
to amend remains at issue.
to the Scheduling Order entered by Judge Watanabe on May 31,
2018, the deadline for the amendment of pleadings was June 8,
2018. (Dkt. #28 at 8.) The subject motion was filed more than
eight months after the expiration of this deadline.
a scheduling order deadline, a party seeking leave to amend
must demonstrate (1) good cause for seeking modification
under [Rule 16(b)(4), ] and (2) satisfaction of the Rule
15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo
Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir.
16(b)(4) provides that a scheduling order “may be
modified only for good cause and with the judge's
consent.” See Fed. R. Civ. P. 16(b)(4). The
“good cause” standard requires the moving party
to show that despite its diligent efforts, it could not have
reasonably met the scheduled deadline. See Pumpco, Inc.
v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D.
Colo. 2001). This standard is more stringent that the lenient
standard contained in Rule 15(a).
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. Properly
construed, “good cause” means that scheduling
deadlines cannot be met despite a party's diligent
efforts. In other words, this court may “modify the
schedule on a showing of good cause if [the deadline] cannot
be met despite the diligence of the party seeking the
extension.” Carelessness is not compatible with a
finding of diligence and offers no reason for a grant of
Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D.
684, 687 (D. Colo. 2000) (quoting Dilmar Oil Co., Inc. v.
Federated Mut. Ins. Co., 986 F.Supp. 959 (D.S.C. 1997),
aff'd, 129 F.3d 116 (4th Cir. 1997)). Although
“good cause” under Rule 16(b)(4) may be met if a
plaintiff learns new information from discovery, “[i]f
the plaintiff knew of the underlying conduct but simply
failed to raise [his claims] . . . the claims are
barred.” Gorsuch, Ltd., 771 F.3d at 1240.
“[T]he application of Rule 16(b)'s good-cause
standard is not optional.” Perez v. Denver Fire
Dep't, 243 F.Supp.3d 1186, ...