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Toney v. Harrod

United States District Court, D. Kansas

May 1, 2018

MICHAEL M. TONEY, Plaintiff,
GORDON HARROD, et al., Defendants.



         This matter is before the Court on Plaintiff's Motion to Amend (ECF No. 72). Plaintiff seeks leave to amend his complaint to bring back into the lawsuit a previously dismissed Defendant, Corizon Health Services, Inc. Plaintiff also seeks to add a state law medical malpractice claim against current Defendants Travis Nickelson and Gordon Harrod. Defendant Nickelson and former Defendant Corizon oppose the motion. Upon consideration of the matter, the Court grants the motion in part and denies the motion in part.

         I. Background

         Plaintiff filed his original pro se complaint on August 31, 2015, [1] and six months later moved for leave to file a supplemental complaint.[2] On May 11, 2016, the Court entered a screening order which, among other things, (1) construed Plaintiff's motion for leave to file a supplemental complaint as a motion seeking leave to file an amended complaint, and granted the motion; (2) ordered Plaintiff to file another amended complaint, within 21 days, which stated a claim upon which relief could be granted against Defendant Corizon; and (3) denied Plaintiff's motion for appointment of counsel.[3] Plaintiff did not further amend his complaint with respect to Corizon, and on June 8, 2016, the Court entered an order dismissing Corizon from this action.[4]

         Plaintiff filed three more motions for appointment of counsel and a motion seeking leave to file a second amended complaint.[5] On February 8, 2017, the Court entered an order denying Plaintiff's motions for appointment of counsel and included the following ruling: “Plaintiff must condense his Complaint (Doc. 1), Amended Complaint (Doc. 12), and proposed Supplemental Complaint (Doc. 37-1) into a single document that sets forth all of the defendants and claims, taking into account the Court's previous rulings (Docs. 11, 13) and this Order. This will allow all parties to operate from a single Complaint going forward.”[6]

         On February 23, 2017, Plaintiff filed his second amended pro se complaint.[7] On March 8, 2017, Defendant Nickelson and others filed their joint answer.[8] The State Defendants responded to Plaintiff's second amended complaint by filing a motion to dismiss, [9] which the presiding District Judge granted in part and denied in part.[10] The undersigned Magistrate Judge set a telephone Scheduling Conference following the dispositive motion ruling, and during the call granted Plaintiff's oral motion for appointment of counsel. The Court appointed counsel and conducted a Scheduling Conference, pursuant to which the parties exchanged their Federal Rule of Civil Procedure 26 initial disclosures.[11] Consistent with the deadline in the new Scheduling Order, [12] Plaintiff timely filed the instant motion one week after the Scheduling Conference. The discovery deadline is August 31, 2018, and the record does not reflect that any party has conducted discovery to date.

         II. Legal Standard

         Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial. It provides that the parties may amend a pleading “once as a matter of course” before trial if they do so within (A) 21 days after serving the pleading, or (B) “if the pleading is one to which a responsive pleading is required, ” 21 days after service of the responsive pleading or a motion under Fed.R.Civ.P. 12(b), (e), or (f), whichever is earlier.[13] Other amendments are allowed “only with the opposing party's written consent or the court's leave.”[14] Rule 15(a)(2) also instructs that the court “should freely give leave when justice so requires.”[15] The court's decision to grant leave to amend a complaint, after the permissive period, is within the trial court's discretion and will not be disturbed absent an abuse of that discretion.[16] The court may deny leave to amend upon a showing of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”[17]

         If a proposed amendment would not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or fails to state a claim upon which relief may be granted, the court may deny leave to amend.[18] “[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[19] A complaint or amendment thereof need only make a statement of the claim and provide some factual support to withstand dismissal.[20] It does not matter how likely or unlikely the party is to actually receive such relief, because for the purposes of dismissal all allegations are considered to be true.[21] The party opposing the amendment has the burden of showing the proposed amendment is futile.[22]

         III. Analysis

         Plaintiff seeks to assert claims against Corizon, a Defendant named in his original complaint but later dismissed by the court, and to add an alternative cause of action for medical malpractice against two individual Defendants. The Court addresses each in turn.

         A. Adding Corizon as a Defendant

         Plaintiff, now assisted by counsel, seeks to once again include Corizon as a party Defendant in this action following its dismissal. The June 8, 2016 order, which dismissed Corizon and six individual Defendants, did not specify whether it was with or without prejudice. Plaintiff contends it was without prejudice, while Corizon argues the dismissal was with prejudice. Under Federal Rule of Civil Procedure 41(b), except in situations not applicable in this case, an involuntary dismissal “operates as an adjudication on the merits”[23] or, in other words, with prejudice.

         Plaintiff correctly argues that where a pro se pleading is at issue, courts both liberally construe the pleading and are slow to enter dismissals without prejudice unless it is obvious that a plaintiff cannot prevail on the facts as alleged and amendment would be futile. However, Plaintiff does not acknowledge or seek to distinguish the plain language of Rule 41(b). While the Court recognizes the difficulty a pro se inmate may face in understanding and complying with court orders, Judge Crow's directive was clear.[24] When Plaintiff failed to timely comply, Judge Crow entered an order “direct[ing] that Corizon, . . . be dismissed from this case.”[25] Because the order did not otherwise state its effect, the order dismissing Corizon was an adjudication on the merits. The Court denies Plaintiff's motion to amend insofar as it seeks to assert claims against Corizon.

         B. Adding an alternative cause of action for medical malpractice

         Plaintiff seeks to add a claim for medical malpractice against Defendants Gordon Harrod and Travis Nickelson, both of whom were named as Defendants in the original pro se complaint. On May 12, 2016, pursuant to Judge Crow's screening order, the Clerk of Court transmitted waivers of service to both Defendants.[26] Defendant Nickelson, through counsel, ...

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