MIKE C. MATSON, Plaintiff,
JOEL HRABE, Defendant.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
Plaintiff is a state system inmate who has brought a pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging illegal retaliation. Plaintiff has also alleged a supplemental state law claim. Defendant was a deputy warden at the Norton Correctional Facility (NCF) during the relevant times in this case. Currently pending before the court are defendant's motion for summary judgment and plaintiff's motion to file a second amended complaint. For various reasons, including undue delay and futility, the court shall deny plaintiff's motion to file a second amended complaint. The court shall grant defendant's motion for summary judgment because plaintiff cannot demonstrate the denial of a constitutional right or that the alleged retaliatory acts were clearly established to be unconstitutional at the time they were committed. Before discussing these holdings in greater detail, the court shall address some related pending motions.
I. RELATED PENDING MOTIONS
Plaintiff's motion for leave to supplement exhibits in support of his response to defendant's motion for summary judgment (Doc. No. 203) shall be granted. Plaintiff's motion for in camera review of discovery material (Doc. No. 213) shall be denied. The court is not convinced that the relief requested by plaintiff will be of material benefit to the court's decision upon the summary judgment motion or other issues in this case. The court shall overrule plaintiff's objections (Doc. No. 198) to a Magistrate Judge's order denying reconsideration of a prior order deciding several motions. The court has reviewed the Magistrate Judge's order and finds that it is neither clearly erroneous nor contrary to law.
II. CASE HISTORY
Plaintiff filed the original complaint on November 10, 2011 and filed an amended complaint on January 10, 2012. The amended complaint alleges a denial of access to the courts and retaliation against the exercise of plaintiff's First Amendment rights to file a grievance as an inmate in the Kansas prison system. A state law negligence claim is also alleged in the amended complaint. A motion to dismiss or for summary judgment was filed on September 20, 2012. The court issued an order which granted in part and denied in part the motion to dismiss or for summary judgment on January 9, 2013. Doc. No. 53. The court granted judgment against plaintiff's claim of denial of access to the courts. The court allowed plaintiff's retaliation claim to go forward, although the court determined that plaintiff could not prove illegal retaliation solely from the ordering of searches and property audits of plaintiff's cell. The court did not dismiss a claim that plaintiff was transferred to a different cell to retaliate against the exercise of his First Amendment rights. Plaintiff asked the court to alter or amend the January 9, 2013 order. The court denied the motion to alter or amend but permitted plaintiff to argue that defendant engaged in a "campaign" of harassment or retaliation. Doc. No. 65.
III. PRO SE STANDARDS
The court construes a pro se plaintiff's "pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997)(quotations and citations omitted). "[I]f the court can reasonably read the pleadings to state a valid claim..., it should do so despite plaintiff's failure to cite proper legal authority, his confusion of various legal theories... or his unfamiliarity with pleading requirements." Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). But, it is not the "proper function of the district court to assume the role of advocate for the pro se litigant." Id.
IV. PLAINTIFF'S MOTION TO FILE A SECOND AMENDED COMPLAINT SHALL BE DENIED.
Plaintiff filed a motion for leave to file a second amended complaint on November 18, 2013, two years after the original complaint was filed in this case. The scheduling order in this case set a deadline of October 18, 2013 for motions to amend the pleadings. But, in August or September 2013, plaintiff informed defense counsel of plaintiff's desire to extend the deadline and plaintiff filed a motion seeking a three-month extension. Defense counsel expressed no opposition to a one-month extension, but asked that any extension be limited to the adverse actions or injuries alleged by plaintiff in his amended complaint. Ultimately, the requested extension was considered moot by the Magistrate Judge because this court granted a partial stay of discovery. The discovery deadline in this case was December 6, 2013. Discovery was stayed on November 6, 2013 as to all issues except those relating to qualified immunity. All discovery as to qualified immunity was to be commenced or served in time to be completed by December 6, 2013.
A. Contents of the proposed second amended complaint and defendant's arguments in opposition
The proposed second amended complaint has five counts. Counts One and Two allege a "campaign" of retaliation against plaintiff's exercise of his First Amendment rights. Count Three alleges the tort of negligent infliction of emotional distress. Count Four alleges interference with plaintiff's access to the court by impeding plaintiff from filing a medical malpractice claim, and Count Five alleges gross negligence and willful misconduct by intercepting, opening and tampering with plaintiff's outgoing legal and official mail in violation of State of Kansas regulations and 18 U.S.C. §§ 1701 and 1702.
The proposed second amended complaint includes the following allegations which are not contained in the amended complaint:
- that plaintiff was transferred from a single cell in A-Unit to C-Unit which was a multi-occupancy disciplinary and segregation unit, contrary to his mental health restrictions, with more hostile inmates and more restrictions;
- that the stress of living in C-Unit aggravated plaintiff's GERD condition and caused acid reflux and asthma attacks;
- that plaintiff was harassed by other inmates in C-Unit who stole from plaintiff and threatened him in order to coerce plaintiff into purchasing items which plaintiff was allowed to purchase but other inmates could not;
- that he had an intense light shining in his cell in C-Unit 24-hours a day which caused him to lose sleep;
- that the roof leaked in C-Unit which caused an electrical hazard;
- that cameras were installed in the shower areas of C-Unit and that female staff could watch plaintiff in the shower;
- that during cell searches conducted in C-Unit plaintiff lost a hot pot, an alarm clock and a fan;
- that the C-Unit cell had less living space than the A-Unit cell and less than 25 square feet per inmate;
- that staff seized plaintiff's mail and refused to process grievances necessary as a precondition for bringing a court action;
- that plaintiff was forced to agree to not file further grievances or property claims in order to move from his cell in C-Unit to other C-Unit housing.
Defendant opposes the motion to amend on the grounds that: the proposed second amended complaint has been unduly delayed; the proposed amendments raise new factual allegations which will require more discovery; the second amended complaint makes plaintiff's claims a moving target; and Counts Three and Five are futile.
B. Standards governing motions to amend
Under FED.R.CIV.P. 15(a)(2), "[t]he court should freely give leave [to amend] when justice so requires." "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.'" Bylin v. Billings , 568 F.3d 1224, 1229 (10th Cir. 2009)(quoting Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365 (10th Cir. 1993)). "In deciding whether a delay is undue, ' [courts] focus primarily on the reasons for the delay." Cohen v. Longshore , 621 F.3d 1311, 1313 (10th Cir. 2010)(interior citation and quotation omitted). "[The Tenth Circuit has] held that denial of leave to amend is appropriate when the party filing the motion has no adequate explanation for the delay." Id . (interior quotation omitted). "[C]ourts have denied leave to amend where the moving party was aware of the facts on which the amendment was based for some time prior to filing the motion to amend." Fed. Ins. Co. v. Gates Learjet Corp. , 823 F.2d 383, 387 ...