Broach v. Yegappan

          Marcia S. Krieger Judge

          OPINION AND ORDER DENYING MOTION TO STRIKE AND ACCEPTING FOR FILING PLAINTIFF'S PROPOSED SECOND AMENDED PRISONER COMPLAINT

         THIS MATTER comes before the Court pursuant to the Plaintiff's tendered Second Amended Complaint (# 46)^[1]and the Defendants Muthulakshmi Yegappan, Vani Russell, Brenna Woodcock, Robert Magnusson, and Audrey Porreca's Motion to Strike the Proposed Second Amended Complaint (# 49), to which no response was filed.

         BACKGROUND

         The Court assumes the reader's familiarity with the claims and underlying proceedings in this case. Mr. Broach is an inmate in the custody of the Colorado Department of Corrections (“CDOC”) and is currently incarcerated at the Colorado Territorial Correctional Facility in Cañon City, Colorado.

         On November 20, 2017, Mr. Broach initiated this case by filing a pro se Prisoner Complaint (# 1), asserting a number of claims that the Defendants delayed in providing medical care and/or failed to provide appropriate medical care, causing him to permanently lose vision. Following the Court's initial review process pursuant to D.C.COLO.L.Civ.R 8.1(b), on November 8, 2018, Mr. Broach filed his Amended Prisoner Complaint (# 14), which is the operative pleading. It asserts four claims, all under 42 U.S.C. § 1983, for a violation of his Eighth Amendment right to be free from cruel and unusual punishment.

         On April 23, 2019, the Court issued an Order on various motions to dismiss (# 45), dismissing without prejudice all claims against Dr. Yegappan, Dr. Magnusson, Mr. Russell, Ms. Rife, Ms. Porreca, and Ms. Woodcock pursuant to Fed.R.Civ.P. 12(b)(6) and dismissing without prejudice all claims against Dr. Morris, Ms. Gilmore, and Ms. Ariola-Tirella pursuant to Fed.R.Civ.P. 4(m). (# 45). Although the Order dismissed all of the official capacity claims and the individual capacity claims, it authorized Mr. Broach to “file a motion to amend his complaint a second time, ” not later than May 22, 2019, provided he could “cure the deficiencies” specified in the Court's Order. (# 45 at 12-13).

         Presumably in response to the April 23, 2019 Order, on May 23, 2019, Mr. Broach filed an “Amended Amended Prisoner Complaint” (# 49)^[2], which the Court now construes as a proposed Second Amended Complaint. On June 13, 2019, Dr. Yegappan, Dr. Magnusson, Mr. Russell, Ms. Porreca, and Ms. Woodcock filed a motion to strike the proposed Second Amended Complaint pursuant to Fed R Civ. P. 12(f).

         DISCUSSION ^[3]

         The Defendants argue that the proposed Second Amended Complaint should be stricken because: (i) it violates the April 23, 2019 Order and (ii) any amendment is futile because it fails to cure the defects articulated in the Court's Order. (# 49).

         Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). However, the court will typically do so in its discretion only “when the allegations have no bearing on the controversy and the movant can show that he has been prejudiced.” Seybold v. Weld Cnty. Sheriff's Office, No. 08-cv-00916-DME-MJW, 2008 WL 4489269, at *1 (D. Colo. Oct. 1, 2008); 5A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, § 1382 (3d. ed.). Indeed, as a general matter, “motions to strike under Rule 12(f) are disfavored.” See Kimpton Hotel & Rest. Group L.L.C. v. Monaco Inn, Inc., 2008 WL 140488, *1 (D. Colo. Jan. 11, 2008).

         A. Motion to Amend Complaint

         As an initial matter, the Court rejects Defendants' first argument that the proposed Second Amendment Complaint should be stricken for failure to follow the Court's April 23, 2019 Order. Although it is true that Mr. Broach failed to follow the Court's April 23, 2019 Order and file an appropriate motion for leave to amend along with a proposed pleading, in light of Mr. Broach's pro se status and the fact that the Court expressly granted him leave to move to amend his Complaint a second time, the Court will treat the proposed Second Amended Complaint as a motion for leave to amend pursuant to Fed.R.Civ.P. 15.

         Rule 15(a) (2) governs the amendment of pleadings and provides that leave to amend a pleading should be “freely give[n] when justice so requires.” Fed.R.Civ.P. 15(a) (2). Although leave under Rule 15 should be freely granted, the Court may deny such requests where the proposed amendment or supplementation is the result of undue delay, bad faith, a dilatory motive, where it would cause prejudice to the opposing party if granted, futility of amendment, or where previous efforts to amend failed to cure deficiencies. Warnick v. Cooley, 895 F.3d 746, 755 (10th Cir. 2018).

         Rather than arguing that the proposed amendment is the product of undue delay or would be unduly prejudicial, the Defendants argue that the proposed Second Amended Complaint should be stricken as futile, arguing that (i) the new claims fail to state a claim and (ii) there are no factual allegations concerning many of the proposed new defendants. A proposed amendment is futile if the complaint, as amended, would be subject to dismissal. Thus, the Court treats Defendants' motion to strike as a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6). See Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. ...