Opinion
CIV-04-0239 MV/LAM.
November 2, 2006
ORDER DENYING PLAINTIFF'S NOTICE AND MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL COMPLAINT ( Doc. 174 )
THIS MATTER is before the Court on Plaintiff's Notice and Motion for Leave to File Amended and Supplemental Complaint ( Doc. 174), filed on September 6, 2006, which the Court construes as a motion for leave to amend and supplement his complaint pursuant to Fed.R.Civ.P. 15. The Court has reviewed the motion, Defendants' response to the motion ( Doc. 179), Plaintiff's reply to the response ( Doc. 200), Plaintiff's supplement ("annexation") to his reply to the response ( Doc. 202), the record in this case and relevant law, and FINDS that the motion is not well-taken and should be DENIED. Background
Plaintiff is an inmate proceeding pro se and in forma pauperis who initiated this case on March 1, 2004, by filing his original complaint ( Doc. 1). Plaintiff's original complaint, asserting civil rights claims pursuant to 42 U.S.C. § 1983, names as defendants a number of current and former New Mexico corrections officials and asserts multiple claims for relief for alleged violations of Plaintiff's rights under the First, Fourth and Fourteenth Amendments to the United States Constitution. All of the claims in Plaintiff's original complaint relate to prison conditions. More specifically, the claims in Plaintiff's original complaint allege that: (1) Defendants Prescott and Bustos wrote and edited New Mexico Corrections Department policies that denied Plaintiff possession of personal, legal and religious books, magazines and newspapers, and restricted his possession of letters and pictures, in violation of his rights under the First, Fourth and Fourteenth Amendments; (2) Defendants Williams and Perry signed the foregoing policies into effect, in violation of Plaintiff's rights under the First, Fourth and Fourteenth Amendments; (3) Defendant Sedillo denied Plaintiff's prison grievances regarding the possession of personal books, magazines and newspapers, the prison's rule against having lights on in his cell at night, refusals by prison staff to answer his requests, and restrictions on the possession of personal letters, in violation of his rights under the First, Fourth and Fourteenth Amendments; (4) Defendant Bustos changed the prison's "Inmate Request to a Staff Member" form so that prison staff would not have to answer or acknowledge such forms or send copies of the forms to prisoners, in violation of Plaintiff's rights under the Fourteenth Amendment; (5) Defendant LeMaster denied Plaintiff's prison grievances regarding the prison's rule against having lights on in his cell at night, restrictions on out-going mail, and refusals by prison staff to answer his requests, in violation of his First and Fourteenth Amendment rights; and (6) Defendant Shanks denied Plaintiff's prison grievance regarding the possession of religious books which violated his rights under the First Amendment.
See Civil Complaint ( Doc. 1) at pages 10-11.
In his original complaint, Plaintiff sues Defendants Williams, Bustos, Prescott and Sedillo in their individual and official capacities, Defendant LeMaster in his official capacity, and Defendants Perry and Shanks in their individual capacities. The prayer for relief in Plaintiff's original complaint seeks declaratory and injunctive relief, compensatory and punitive damages, costs and, although he is not represented by counsel, attorney's fees.
Id. at pages 2-2a.
Id. at pages 1 and 11-13.
In his motion before the Court, Plaintiff seeks leave to amend and supplement his original complaint to add new defendants and add new claims to this case. Pursuant to D.N.M.LR-Civ. 15.1, Plaintiff has attached to his motion, as an unmarked exhibit, a copy of a fifty-three page proposed amended complaint which has attached to it one-hundred and forty-nine pages of new exhibits. In his motion, Plaintiff asks the Court to allow him to incorporate by reference, as additional exhibits to his proposed amended complaint, all of the exhibits that are attached to his original complaint.
See Notice and Motion for Leave to File Amended and Supplemental Complaint ( Doc. 174), unmarked exhibit titled "Amended Civil Complaint."
See Notice and Motion for Leave to File Amended and Supplemental Complaint ( Doc. 174), at page 12.
Plaintiff's proposed amended complaint would retain as defendants the seven existing defendants in this case and would add nineteen new defendants, all of whom are either current or former New Mexico corrections officials, employees or service providers. All of the new defendants would be sued in their individual capacities. The proposed new defendants are Robert Ulibarri, Marvin Armijo, Jerry Tafoya, Phillip Mares, Doctor Brown, John Moore, Elize Mierzwiac, Joel Warren, Dan Collins, Denis Mares, Ralph Casaus, Joan Von Wolff, Paula Biamont, Mike Burkhart, Jose Romero, Joyce Fielder, Bayola Luna, Ricky Griffith and Paul Martinez.
See Notice and Motion for Leave to File Amended and Supplemental Complaint ( Doc. 174), unlabeled exhibit titled "Amended Civil Complaint," at pages 1, and 2c-2d.
Id. at page 2d.
The proposed amended complaint would re-assert five of the six claims that are asserted in Plaintiff's original complaint and delete one of the claims asserted in the original complaint. Additionally, the proposed amended complaint would add eighteen new claims to this case, all of which purport to be claims under 42 U.S.C. § 1983. In his proposed amended complaint, Plaintiff characterizes some of the new claims as amended claims, and some of the new claims as supplemental claims.
The deleted claim is Plaintiff's claim that Defendant Bustos changed the prison's "Inmate Request to Staff Member" form so that prison staff would not have to answer or acknowledge such forms or send copies of the forms to prisoners, in violation of Plaintiff's rights under Fourteenth Amendment. See Notice and Motion for Leave to File Amended and Supplemental Complaint ( Doc. 174), at page 2, ¶ 5; and Notice and Motion for Leave to File Amended and Supplemental Complaint ( Doc. 174), unlabeled exhibit titled "Amended Civil Complaint," at page 7, parenthetical following ¶ 80 ("[Paragraphs (82) thru (101) are deleted]"), and pages 27, and 29-31.
The amended claims in Plaintiff's proposed amended complaint allege that: (1) Perry, Prescott, Bustos, Shanks, Tafoya, Armijo and LeMaster wrote, signed and enforced prison policies that caused Plaintiff to be denied recreation for one-hundred and twenty days, in violation of his rights under the Eighth Amendment; (2) Perry, Bustos, Prescott, Shanks, Tafoya, Armijo and LeMaster, in setting and enforcing prison policies and guidelines, caused Plaintiff to be subjected to cruel and unusual punishment by denying him recreation for one-hundred and twenty days; (3) the acts and omissions of Perry, Bustos, Ulibarri, Prescott, Collins, Williams, Brown, Moore, Mierzwiac and Warren, related to denying Plaintiff alternative placement area housing, violated his rights under the Eighth and Fourteenth Amendments; (4) the acts and omissions of Ulibarri, Prescott, Bustos and Perry, related to changes in a behavioral program contract policy for inmates, violated Plaintiff's rights under the Eighth and Fourteenth Amendments and violated 5 U.S.C. § 552; (5) the acts and omissions of Tafoya, Shanks and Ulibarri, in denying Plaintiff's prison grievance asserting the right to a behavioral program contract, violated his rights under the Eighth and Fourteenth Amendments; (6) Ulibarri's approval of a behavioral program contract for another inmate violated Plaintiff's rights under the Fourteenth Amendment; (7) the acts and omissions of Shanks, Tafoya, Ulibarri, LeMaster, Sedillo, Perry, Williams, Bustos and Prescott, in writing, authorizing and enforcing a prison strip-search policy, violated Plaintiff's rights under the Fourth Amendment; (8) the acts and omissions of Tayofa, Shanks, Ulibarri, Mares, Perry and Williams, in writing, authorizing and enforcing policy, practice and procedure that allowed the suspension of Plaintiff's spousal visitation rights for four years and six months violated Plaintiff's rights under the Fourteenth Amendment; and (9) Mares, Tafoya, Shanks, Ulibarri and Casaus denied Plaintiff the right to receive money from his spouse which violated his rights under the Fourteenth Amendment and Section 40-2-1, N.M.S.A.
See Notice and Motion for Leave to File Amended and Supplemental Complaint ( Doc. 174), unlabeled exhibit titled "Amended Civil Complaint," at page 19, ¶ 163 — page 23, ¶ 177, and page 31, ¶ 195 — page 34, ¶ 203.
The supplemental claims in Plaintiff's proposed amended complaint allege that: (1) Von Wolff, acting in retaliation for Plaintiff's frequent use of the prison law library which is a constitutionally protected activity, allowed Plaintiff to check-out a law book from the law library which had five missing pages and this resulted in Plaintiff's prison account being wrongfully charged $78.00 for property damage; (2) Biamont deducted the $78.00 dollars from Plaintiff's prison account for the law book with the missing pages and this was done without a hearing in violation of Plaintiff's rights under the Fourteenth Amendment; (3) the acts and omissions of Biamont, Fielder, Luna, Ulibarri, Burkhart, Romero and Sedillo, in failing to take steps to put the deducted $78.00 back in Plaintiff's prison account, violated his rights under the Fourteenth Amendment; (4) Fielder failed to correct and properly supervise Von Wolff and Luna with regard to the matter of the law book with the missing pages and the $78.00 deduction from Plaintiff's prison account, which violated Plaintiff's rights under the Fourteenth Amendment; (5) the acts and omissions of Ulibarri in failing to correct and properly supervise Biamont with regard to the $78.00 deduction from Plaintiff's prison account without a hearing, violated Plaintiff's rights under the Fourteenth Amendment; (6) the acts and omissions of Von Wolff, Sedillo, Luna, Fielder, Biamont, Ulibarri, Burkhart and Romero, in denying Plaintiff the right to purchase items at the prison commissary, violated Plaintiff's rights under the First and Fourteenth Amendments; (7) the denial by Sedillo, Griffith and Ulibarri of Plaintiff's prison grievance regarding access to case law, violated his right of access to the courts; (8) the acts and omissions of Perry, Williams, Bustos, Prescott, Sedillo, Griffith and Ulibarri, in writing, authorizing and enforcing a policy that denied Plaintiff access to case law, violated his right of access to the courts; (9) the acts and omissions of Ulibarri, Martinez and Sedillo related to the processing and delivery of prison mail and the placement of prison mailboxes, violated Plaintiff's rights under the First Amendment.
Id. at page 26, ¶ 185 — page 27, ¶ 187, and page 34, ¶ 204 — page 36, ¶ 212.
The expanded prayer for relief in Plaintiff's proposed amended complaint, which is much lengthier than the prayer for relief in his original complaint, seeks declaratory and injunctive relief, compensatory and punitive damages, and costs.
Id. at pages 36-49.
Analysis
Most of the argument in Plaintiff's motion concerns the subject of why the Eighth Amendment claims in his proposed amended complaint are not barred by collateral estoppel or res judicata. In this regard, Plaintiff appears to contend that various proceedings and rulings in the New Mexico state court case captioned " Andrew Ferguson, et al. v. Tim LeMaster, et al.," filed in the First Judicial District Court as Case No. D-0101-CR-200100192 [and consolidated cases], do not bar his proposed amended claims brought under the Eighth Amendment. This argument by Plaintiff is speculative and premature as he has not been granted leave to file an amended or supplemental complaint in this case and no responsive pleading or dispositive motion asserting those defenses to his amended or supplemental claims has been filed by Defendants.Most of the arguments in Defendants' response to Plaintiff's motion, and Plaintiff's reply to the response, concern the subject of whether any amended claims asserted by Plaintiff in his proposed amended complaint arise out of the same conduct, transactions or occurrences set forth in his original complaint and whether such claims should relate back to the filing date of his original complaint. Defendants contend that Plaintiff should not be permitted to amend his complaint because his claims do not arise out of the same conduct, transactions or occurrences set forth in his original complaint. However, relation back is only an issue if Plaintiff is granted leave to file an amended pleading. See Fed.R.Civ.P. 15(c) (providing that an amendment of a pleading relates back to the date of the original pleading when the requirements of the rule are met); see also Caban-Wheeler v. Elsea, 71 F.3d 837, 841 (11th Cir. 1996) ("[U]nder Rule 15(c) of the Federal Rules of Civil Procedure, the decision whether to allow a plaintiff to amend the complaint is separate from, and based upon a different standard than, the decision whether the new claim relates back to the original complaint.").
Leave to amend a pleading should be freely granted "when justice so requires." Fed.R.Civ.P. 15(a). However, factors which militate against granting leave to amend include undue delay, prejudice to the opposing party and futility of the amendment. See Wessel v. City of Albuquerque, 299 F.3d 1186, 1196-97 (10th Cir. 2002) (affirming denial of leave to amend based on undue delay); McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1130 (10th Cir. 1998) (affirming denial of leave to amend based on undue delay and prejudice to opposing party); Jefferson County School District No. R-1 v. Moody's Investor's Services, Inc., 175 F.3d 848, 858-861 (10th Cir. 1999) (affirming denial of leave to amend based on futility of proposed amendment). Permission to file a supplemental pleading, related to events that have occurred since the date an original pleading was filed, may be granted "upon reasonable notice and upon such terms as are just." Fed.R.Civ.P. 15(d). "Leave to supplement a complaint should be liberally granted unless good reason exists for denying leave, such as prejudice to the defendants." Gillihan v. Shillinger, 872 F.2d 935, 941 (10th Cir. 1989) (citations omitted). In this case, the Court has determined that Plaintiff's motion should be denied because of Plaintiff's undue delay in seeking to amend his complaint and because granting Plaintiff's motion will prejudice Defendants.
Plaintiff's motion was filed after : (1) this case had been pending for two and one-half years, (2) the Martinez report for this case, which is related to the claims in Plaintiff's original complaint, was finally completed after a protracted delay caused in large part by the parties; and (3) the dispositive motions filed in this case by Defendants were fully briefed. Moreover, it appears from his proposed amended complaint that Plaintiff was aware of most of the information on which his amended claims are based prior to filing his original complaint and that Plaintiff could have included most, if not all, of those claims in his original complaint. Delay is a significant factor which the Court must consider in ruling on a motion to amend a complaint. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-1366 (10th Cir. 1993) ("It is well settled in this circuit that untimeliness alone is a sufficient reason to deny leave to amend . . ., especially when the party filing the motion has no adequate explanation for the delay . . . [and] the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint. . . ." (citations omitted)). Plaintiff has made no showing in his motion that would justify his long delay in seeking to amend his complaint nor has he explained why these additional parties and claims were not or could not have been included in his original complaint.
These dispositive motions were recently denied without prejudice, with leave to renew the motions at a later date by filing a notice with the Court. See Order ( Doc. 185), filed on September 28, 2006.
The Court also finds that Defendants will be prejudiced if Plaintiff's motion is granted. The Martinez report for this case is complete and Defendants have filed dispositive motions that are fully briefed, subject to being renewed. If Plaintiff's motion is granted, and multiple new defendants and claims are added to this case, these changes will significantly alter the structure of the case, making it more complex, and will further delay the resolution of this case on the merits. The new defendants will have to be served with process, and all defendants will have to be given time to respond to the amended and supplemented complaint, participate in submission of a revised Martinez report and file dispositive motions. Plaintiff will have to be given time to respond to filings by the new and existing defendants. This increase in the complexity of the case and further delay of a decision on the merits will unduly prejudice the existing defendants.
Accordingly, Plaintiff's motion will be denied.
IT IS THEREFORE ORDERED that Plaintiff's Notice and Motion for Leave to File Amended and Supplemental Complaint ( Doc. 174) is DENIED.
IT IS SO ORDERED.