Martinez v. Colorado Department of Corrections

          ORDER

          NINA Y. WANG, MAGISTRATE JUDGE

         This 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].

         The 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.

         BACKGROUND

         Plaintiff initiated this action by filing his pro se^[1] 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].

         In the 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, 2019. [#36].^[2]

         The 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. See [#56].

         On 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).

         ANALYSIS

         I. The Motion to Strike and Amend

         Rule 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).

         Mr. 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 ...