United States District Court, D. Colorado
Y. WANG, MAGISTRATE JUDGE
matter comes before this court on the following two motions
filed by Plaintiff Antonio Martinez (“Plaintiff”
or “Mr. Martinez”) on October 29, 2019:
(1) Motion to Strike and Amend, [#58]; and
(2) Motion to Appoint Medical Expert, [#59].
presiding judge, the Honorable Philip A. Brimmer, referred
the Motions to the undersigned pursuant to 28 U.S.C. §
636(b) and the Memorandum dated October 30, 2019 [#60].
Having reviewed the Motions and associated briefing,
applicable case law, and entire docket, this court
CONSTRUES the Motion to Strike and Amend as
a Notice of filing an amended pleading pursuant to
D.C.COLO.LCivR 15.1(a) and DENIES the Motion
to Appoint Medical Expert.
initiated this action by filing his pro se prisoner
Complaint on April 29, 2019, alleging violations of his
constitutional rights as well as violations of his federal
and state statutory rights against the Colorado Department of
Corrections (“CDOC”) and various CDOC employees
for allegedly providing inadequate treatment for
Plaintiff's rare form of Type II Diabetes that makes him
insulin resistant. See generally [#1]. The Honorable
Gordon P. Gallagher granted Plaintiff leave to proceed in
forma pauperis and ordered Plaintiff to file an Amended
Complaint. [#5; #7]. Upon filing an Amended Complaint,
Magistrate Judge Gallagher ordered the case drawn to the
undersigned, see [#10], but upon the Parties
non-consent, the court drew this matter to Chief Judge
Brimmer, who then referred the matter to the undersigned,
see [#26; #28].
operative Amended Complaint, Mr. Martinez asserts claims for:
(1) violations of the Americans with Disabilities Act
(“ADA”) and Rehabilitation Act
(“RA”), violations of the Civil Rights for
Institutionalized Persons Act (“CRIPA”),
violations of the Colorado Montez Act (“Montez
Act”), violations of the due process clauses of the
United States and Colorado Constitutions, violations of the
Eighth Amendment of the United States Constitution, and
“for state law violations of negligence, malpractice,
intentional infliction of emotional distress, and for state
liability under respondeat superior”; (2) failure to
accommodate under the ADA, RA, CRIPA, Montez Act, and art.
II, § 25 of the Colorado Constitution; (3) deliberate
indifference to Plaintiff's Eighth and Fourteenth
Amendment rights under the United States Constitution; (4)
negligence and malpractice; (5) intentional infliction of
emotional distress; and (6) respondeat superior. See
generally [#6]. Following service and an extension of
time to answer or respond to the Amended Complaint,
see [#13; #30], Defendants the Colorado Department
of Corrections (“CDOC”), Mrs. Bufmack, Sgt.
Schwab, Sgt. Massey, Sgt. Goss, Lt. London, Officer
Harrington, Officer Frazier, HAS Anderson, and Mrs.
Garcia's (collectively, “CDOC Defendants”)
filed their Motion to Dismiss Plaintiff's Amended
Complaint [Doc. No. 6] Pursuant to Fed.R.Civ.P. 12(b)(1) and
(6) (the “Motion to Dismiss”) on September 13,
CDOC Defendants then filed their Motion to Stay on September
18, 2019, arguing the court should stay all discovery in this
matter pending its resolution of the Motion to Dismiss
because Defendants assert the defense of qualified immunity
and the interests of judicial economy favor a stay. [#39].
The Parties appeared before the undersigned for a Status
Conference on September 23, 2019, at which this court set a
deadline for Plaintiff to respond to the Motion to Dismiss
and Motion to Stay as October 18, 2019 and set this matter
for a further Status Conference on December 18, 2019.
See [#41]. Plaintiff filed his Response in
opposition to the Motion to Stay, but this court granted the
Motion to Stay, thereby staying all discovery until the court
rules on the pending Motion to Dismiss, on October 28, 2019.
October 29, 2019, Plaintiff filed the instant two Motions.
See [#58; #59]. The undersigned directed the CDOC
Defendants to file any Responses to the Motions no later than
November 6, 2019 and prohibited any replies absent leave of
the court. See [#61]. The CDOC Defendants have since
responded in opposition to the Motion to Appoint Medical
Expert, see [#62], but did not respond to the Motion
to Strike and Amend. Neither Party has sought leave to file
any additional briefing, and thus this court concludes that
the Motions are appropriate for disposition currently.
See D.C.COLO.LCivR 7.1(d).
The Motion to Strike and Amend
15(a)(2) of the Federal Rules of Civil Procedure governs the
instant Motion to Strike and Amend, given that this court has
not set a deadline by which to amend pleading, and provides
that leave to amend “shall be freely given when justice
so requires.” Fed.R.Civ.P. 15(a)(2). The court may
refuse leave to amend 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). The
District's Local Rule of Civil Practice 15.1(a) also
contemplates that a party may file an amended pleading with
the consent of the opposing party. D.C.COLO.LCivR 15.1(a).
Whether to allow amendment is within the trial court's
discretion. Burks v. Oklahoma Publ'g Co., 81
F.3d 975, 978-79 (10th Cir. 1996).
Martinez requests leave to strike Defendant Correctional
Healthcare Services from his Amended Complaint and to amend
the case caption to reflect the correct entity as
Correctional Health Partners, LLC. See [#58 at 1-2].
Plaintiff also requests leave to amend to add Jackson &
Coker Medical Group and Officer Maldonado as Defendants,
because Jackson & Coker Medical Group is another entity
used for medical services by the Colorado Department of
Corrections, see [#48], and Officer “Maldonado
had claims stated against her specifically in the Amended
Complaint” but was left off the caption of the Amended
Complaint, though she was named in the original Complaint.
See [#58 at 2-3]. This court directed the CDOC
Defendants to respond ...