Mackey v. Watson

          ORDER REVERSING MAGISTRATE JUDGE'S DENIAL OF DEFENDANTS' MOTION TO AMEND ANSWER OR, ALTERNATIVELY, TO WITHDRAW INACCURATE ADMISSION IN ANSWER

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants Bridgette Watson and Susan Prieto's Objection (Doc. # 194) to United States Magistrate Judge Scott T. Varholak's denial (Doc. # 179) of their Motion to Amend Answer or, Alternatively, to Withdraw Inaccurate Admission in Answer (the “Motion to Amend Answer”) (Doc. # 161). For the following reasons, the Court affirms Defendants' Objection (Doc. # 194) and overrules the Magistrate Judge's denial (Doc. # 179) of their Motion to Amend Answer.

         I. BACKGROUND

         The Court detailed the relevant factual and procedural background of this case in its December 5, 2017 Order Adopting in Part and Rejecting in Part the October 25, 2017 Recommendation of Magistrate Judge Varholak. (Doc. # 51.) Additional factual and procedural background is detailed here only to the extent necessary to address Defendants' Objection.

         Defendants' Objection concerns Claim Four, in which Plaintiff alleges that when he was incarcerated at the Fremont Correctional Facility in February 2017, Defendant Watson, a sergeant employed by the Colorado Department of Corrections at the facility, retaliated against him and violated his First Amendment rights after he complained about her search of his cell. (Doc. # 1 at 16-20; Doc. # 6 at 3.) In Paragraph 66 of his Complaint, filed June 2, 2017, Plaintiff describes the beginning of Defendant Watson's search as follows:

66. The next morning[, ] Feb. 18, 2017, Sgt. Watson came to my cell stating she ‘had a call to shakedown the cell', and I explained to her that [Correctional Officer] White shook the cell down last night and [Correctional Officer] Smith did it a few days before [Correctional Officer] Wood[, ] and I had no dangerous items in my cell.

(Doc. # 1 at 16) (emphasis added). Plaintiff contends that he then “complained” to Defendant Watson about the search and later made a “step 1 grievance” and submitted an “Employee/Contract Worker Conduct Complaint for Harassment and Retaliation” about it. (Id. at 16.) He asserts that because he complained, Defendant Watson confiscated his prescription eyeglasses and socks during her search of his cell and later fired him from his job as an Offender Care Aid worker and filed disciplinary charges against him. (Id. at 16-17, 20-21.)

         In Defendants' Answer, filed December 26, 2017, Defendant Watson addressed the allegations in Paragraph 66 of the Complaint:

15. W ith respect to the allegations set forth in paragraph 66 of the Complaint, Defendant Watson admits she had a call to search Plaintiff's cell on February 18, 2017. Defendant Watson further admits that Plaintiff objected to the search but is without sufficient information and knowledge to form a belief as to the veracity of the remaining allegations set forth in said paragraph and, as a result, denies same.

(Doc. # 52 at 4) (emphasis added).

         Plaintiff moved for summary judgment on February 21, 2018. (Doc. ## 59, 60.) In his Declaration in support of summary judgment, Plaintiff repeated his allegation that on February 18, 2017, “Defendant Watson came to Plaintiff's cell stating she had a call to shakedown the cell but never stated who had called her with those instructions.” (Doc. # 59-1 at 1.) In their Response to the Motion for Summary Judgment, filed April 16, 2018, Defendants denied this allegation. (Doc. # 86 at 2.) Defendants stated, “To the best of [Defendant] Sgt. Watson's recollection, she did not have a call, but decided to search the cell based on items hanging in the cell that were not authorized.” (Id.) (emphasis added). In an accompanying affidavit, Defendant Watson asserted:

3. On February 18, 2017, at about 10:30 a.m., I was in Living Unit 8 and conducted a shakedown of the cell shared by Offender Waldo Mackey and Offender Rodney Fogland.

4. To the best of my memory, I decided to conduct the shake down because during my regular rounds in the living unit, I observed that the cell had a bed sheet hung as a curtain and a television and cables hanging from the wall, which is not allowed.

. . .

7. My observation of these items gave me reason to conduct a shakedown of the cell and I was not motivated by any other reason.

(Doc. # 86-1 at 1-2) (emphasis added).

         Pursuant to the Scheduling Order, the deadline to amend pleadings was April 19, 2018. (Doc. # 74 at 6.)

         Magistrate Judge Varholak recommended that the Court deny Plaintiff's Motion for Summary Judgment on August 2, 2018. (Doc. # 115.) In assessing Plaintiff's contention that Defendant Watson retaliated against him after he complained about her search of his cell, Magistrate Judge Varholak wrote:

Plaintiff contends that Sergeant Watson searched the cell he shared with Mr. Fogland on February 18, 2017, because she had received a call telling her to shakedown the cell. Although Defendants contend in their response to the Motion that “[t]o the best of [Sergeant] Watson's recollection, she did not have a call” to shakedown the cell, in Defendants' Answer to the Complaint, “Defendant Watson admit[ted] she had a call to search Plaintiff's cell on February 18, 2017”. The Tenth Circuit has held that “[a]dmissions in the pleadings ... are in the nature of judicial admissions binding upon the parties, unless withdrawn or amended.” Grynberg v. Bar S Servs., Inc., 527 Fed.Appx. 736, 739 (10th Cir. 2013) (quotation omitted). As a result, a party's attempt to “disavow his earlier judicial admissions . . . with seemingly contrary evidence at summary judgment does not create a disputed issue of fact.” Id. Defendants have not sought to amend or withdraw their Answer and offer no explanation for the contradictory statements. For purposes of Plaintiff's Motion, the Court thus accepts as an undisputed fact that Sergeant Watson received a call to shakedown the cell of Plaintiff and Mr. Fogland on the morning of February 18, 2017.

Plaintiff does not allege that the call received by Sergeant Watson resulted from any protected activity in which Plaintiff himself had previously engaged.

(Id. at 11-12) (footnote and internal citations omitted) (emphasis added). However, his decision to accept as an undisputed fact that Defendant Watson had received a call directing her to search Plaintiff's cell did not bear on his conclusion that Plaintiff was not entitled to summary judgment on Claim Four. See (id. at 12-14.) This Court affirmed and adopted Magistrate Judge Varholak's Recommendation and denied Plaintiff's Motion for Summary Judgment on September 13, 2018. (Doc. # 133.)

         On November 26, 2018, Defendants filed their Motion to Amend Answer, asserting:

Defendants' Answer filed with this Court contains an inaccurate admission that Defendant Watson received a telephone call on February 18, 2017, prompting her to conduct a shakedown of Plaintiff's cell. As reflected in Defendant Watson's Affidavit previously submitted to this Court, the statement contained in the Answer regarding Defendant Watson receiving a telephone call is inaccurate. Actually, Defendant Watson conducted the shakedown of Plaintiff's cell because of her observations of the cell and not because she received a telephone call from anyone else.

(Doc. # 161 at 1.) Defendants requested that, pursuant to Federal Rules of Civil Procedure 15(a) and 16(b)(4), the Court grant them leave to file an Amended Answer, see (Doc. # 161-1), “to correct the mistaken reference to Defendant Watson having received a telephone call as prompting the shakedown of Plaintiff's cell on February 18, 2017” (Doc. # 161 at 4). Alternatively, they sought to “withdraw the incorrect admission contained in paragraph 66 of [their] Answer” concerning Defendant Watson having received a phone call to search Plaintiff's cell. (Id. at 8.) Plaintiff responded in opposition to Defendants' Motion to Amend Answer on December 17, 2018, arguing that the original Answer, in which Defendant Watson admitted she had received a call to search Plaintiff's cell, was accurate and that she shouldn't subsequently be permitted to change her “version of facts according to how the Court has ruled on the issues.” (Doc. # 171 at 1.) Plaintiff also asserted that he would be prejudiced if the Court allowed Defendants to amend their Answer. (Id. at 10.) Defendants replied in support of their Motion to Amend Answer on January 7, 2019. (Doc. # 178.)

         Magistrate Judge Varholak conducted a hearing on Defendants' Motion to Amend Answer on January 8, 2019.^[1] (Doc. # 179); see (Doc. # 194-2 (transcript of motions hearing)). He raised two questions concerning Defendants' Motion to Amend Answer: first, what the relevance of Defendant Watson's allegedly erroneous admission in Paragraph 66 of the Answer was to Plaintiff's fourth claim, and second, whether Defendants had met the good cause standard of Rule 16(b)(4) to allow amendment of their Answer. (Doc. # 194-2 at 3-4.) After hearing argument on both questions from Defendants' counsel, Magistrate Judge Varholak concluded that under Rule 16(b)(4), he was unable to find “good cause to amend [the Scheduling Order] to allow amendment of the [A]nswer.” (Id. at 19.) He therefore denied Defendants' Motion to Amend Answer without reaching the standard for amendment of a pleading pursuant to Rule 15(a)(2). (Id. at 20.)

         Approximately two weeks later, on January 25, 2019, Defendants filed the Objection presently before the Court. (Doc. # 194.) Defendants assert that “the totality of the circumstances warrant allowing the minor amendment to [their] Answer to correct the inaccuracy in what prompted Defendant Watson to conduct a shakedown of Plaintiff's cell.” (Id. at 11.) They ask the Court to “overrule the Magistrate Judge's denial and grant them leave to amend their Answer and accept [their] Amended Answer [(Doc. # 161-1)] . . . for filing ...