Kilman v. Brown

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty United States Magistrate Judge.

         Before the Court is Plaintiff's Motion to Amend Complaint (ECF 60). Although he does not identify a specific amendment, the Court construes the Plaintiff's motion as adding facts to clarify his existing claims and as seeking to bring his claims against Defendant Sheriff Brown in his individual capacity, as well as in his official capacity. For reasons that follow, this Court recommends that the Honorable R. Brooke Jackson grant in part and deny in part the Plaintiff's motion.

         I. Background

         Plaintiff initiated this lawsuit on May 17, 2019, and proceeds pro se. ECF No. 1. In his original complaint, Plaintiff appears to assert a claim for violation of his “constitutional rights” pursuant to 42 U.S.C. § 1983 and a claim under the Americans with Disabilities Act (ADA); based on these claims, Plaintiff requests monetary damages and injunctive relief. As I understand his allegations, Plaintiff is hard of hearing. His son is currently detained at the Arapahoe County Detention Facility (“Detention Facility”). Plaintiff contends that all inmate visits (other than attorney-client) at the Detention Facility are conducted remotely via video. Plaintiff is allowed to have no in-person visits with his son. Based on the difficulty Plaintiff has in communicating with his son using the video equipment supplied by the Detention Facility, Plaintiff contends that absent in-person visits, his constitutional rights and rights under the ADA are violated.

         In the current motion, Plaintiff seeks to add facts and supporting “exhibits” to clarify his two claims. In addition, Plaintiff seeks to bring his claims against Sheriff Brown in his individual capacity. Defendant objects to the requested relief.

         II. Analysis

         Rule 15(a) of the Federal Rules of Civil Procedure instructs courts to freely allow amendment of the pleadings “when justice so requires.” The grant or denial of an opportunity to amend is within the discretion of the Court, “but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Maloney v. City of Pueblo, 323 F.R.D. 358, 359-60 (D. Colo. 2018) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “Refusing leave to amend is generally only justified 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.” Id. (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)).

         In this case, the deadline for amendment of pleadings set forth in the governing Scheduling Order was September 19, 2019 (ECF 31); thereafter, this Court granted Plaintiff's first request to extend the deadline to October 21, 2019 (ECF 44) and Plaintiff's second request to extend the deadline to November 11, 2019 (ECF 56). However, November 11, 2019 was a federal holiday (Veterans Day); thus, Plaintiff executed and filed the present motion on November 12, 2019. The Court finds the motion and its requested relief to be timely and not unduly delayed.

         Defendant does not argue that it would be unduly prejudiced by Plaintiff's amendments and the Court finds no basis on which to find prejudice, particularly as the parties are currently engaged in discovery. Rather, Defendant contends that Plaintiff's request to seek recovery against Defendant in his individual capacity would be futile because the ADA does not permit individual liability and Plaintiff fails to allege Defendant's personal participation in any violation of Plaintiff's constitutional rights. Although provided the opportunity to do so, Plaintiff did not file a reply brief in support of his motion. The Court will proceed to determine whether the interests of justice support granting the Plaintiff's requested amendments pursuant to Rule 15.

         A. Adding “Clarifying” Facts and Exhibits

         The Court recommends that Judge Jackson grant the Plaintiff's request to “clarify” his claims (including identifying his constitutional claim as a violation of the Equal Protection Clause of the Fourteenth Amendment) with additional facts and supporting exhibits, some of which appear to have been generated and/or discovered since the inception of this action. Defendant does not object to the additional facts and exhibits, and the Court finds that they will cause no prejudice as the parties are currently in discovery.

         B. Seeking Recovery Against Defendant in his Individual Capacity

         The Court agrees that Plaintiff's request to seek damages against Defendant in his individual capacity is futile. “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Lind v. Aetna Health, Inc., 466 F.3d 1195, 1199 (10th Cir. 2006); Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001) (“A proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason . . . .”). In this case, the proposed amendment would be futile, because the ADA does not provide for individual liability and Plaintiff fails to allege Defendant's personal participation for his Section 1983 claim. First, Plaintiff alleges a claim under Title II of the ADA (see ECF 60 at 2-5), which provides:

no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of such services, programs or activities of a public entity, or be ...