United States District Court, D. Colorado
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 ...