United States District Court, D. Colorado
WILLIAM G. BROACH, Plaintiff,
MUTHULAKSHMI YEGAPPAN, ROBERT MAGNUSSON, ANGELA MORRIS, VANI RUSSELL, CELIA RIFE, JANE GILMORE, RISHI ARIOLA-TIRELLA, AUDREY PORRECA, and BRENNA WOODCOCK, Defendants.
S. Krieger Judge
OPINION AND ORDER DENYING MOTION TO STRIKE AND
ACCEPTING FOR FILING PLAINTIFF'S PROPOSED SECOND AMENDED
MATTER comes before the Court pursuant to the
Plaintiff's tendered Second Amended Complaint (#
46)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
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.
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.
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
in response to the April 23, 2019 Order, on May 23, 2019, Mr.
Broach filed an “Amended Amended Prisoner
Complaint” (# 49), 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.
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.
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).
Motion to Amend Complaint
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.
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.
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. ...