Hancock v. Cirbo

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT (DKT. #47)

          N. Reid Neureiter, United State Magistrate Judge.

         This case is before the Court pursuant to an Order (Dkt. #56) issued by Judge Raymond P. Moore referring pro se^[1] 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 following recommendation.

         I. BACKGROUND

         Mr. 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.)

         On 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.

         On 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.

         On 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.

         On 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.

         II. ANALYSIS

         Pursuant 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.

         “After 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. 2014).

         Rule 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 relief.

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, ...