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Flores v. Nickelson

United States District Court, D. Kansas

June 1, 2018

JULIAN FLORES, Plaintiff,
v.
TRAVIS NICKELSON, Defendant.

          ORDER

          JAMES P. O'HARA U.S. MAGISTRATE JUDGE.

         Plaintiff, a former state inmate, brings this civil-rights action pursuant to 42 U.S.C. § 1983. He alleges deliberate indifference in violation of the Eighth Amendment arising from a groin injury he suffered while incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas. Plaintiff now seeks leave to amend his complaint to add a medical-malpractice claim against defendant Travis Nickelson, and also to assert a third-party beneficiary breach of contract claim against former defendant Corizon Health (“Corizon”) (ECF No. 68). For the reasons set forth below, the motion is granted.[1]

         I. Background

         Plaintiff filed his original complaint, pro se, on January 21, 2016, against defendant Nickelson.[2] The complaint alleged that Nickelson is an APRN (i.e., advanced practice registered nurse) employed by Corizon Correctional Healthcare, a contract healthcare provider for the Kansas Department of Corrections. Plaintiff alleged that Nickelson treated him with deliberate indifference after he suffered a groin injury on February 24, 2014.

         On October 19, 2016, plaintiff sought leave to amend his complaint to name three additional defendants: Corizon Health, C. Gordon Harrod, M.D., and Deanna R. Morris, LPN.[3] Plaintiff's motion was granted on July 28, 2017, and plaintiff filed his amended complaint the same day.[4] Defendants Corizon Health, Harrod, and Morris filed a joint motion to dismiss the claims asserted against them for the first time in the amended complaint as time-barred by the applicable statute of limitations.[5] On January 17, 2018, the presiding U.S. District Judge, Julie A. Robinson, granted that motion to dismiss.[6]Plaintiff thereafter retained counsel and, on March 22, 2018, the undersigned U.S. Magistrate Judge, James P. O'Hara, conducted a telephone scheduling conference with the parties. The court subsequently entered a scheduling order, setting April 19, 2018 as the deadline for filing any further motion to amend the pleadings.[7]

         On April 6, 2018, plaintiff filed the instant motion for leave to file a second amended complaint. As previously indicated, plaintiff seeks leave to assert a medical-malpractice claim against Nickelson, and to assert a third-party beneficiary breach of contract claim against former defendant Corizon. The court addresses each in turn.

         II. Analysis

         Under Fed.R.Civ.P. 15(a)(2), once a responsive pleading has been filed and twenty-one days have passed, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Rule 15 dictates the court “should freely give leave when justice so requires.”[8] Although the granting of a motion to amend is within the court's discretion, the Supreme Court has indicated that Rule 15's directive to “freely give leave” is a “mandate … to be headed.”[9] Nonetheless, a court may deny leave to amend 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.”[10]

         Medical-Malpractice Claim

         Nickelson opposes plaintiff's amendment on the basis of undue prejudice, arguing that he's been preparing his defense for more than two years “based upon the high standard of deliberate indifference and its intensified focus on Nurse Nickelson's own subjectivity and mental state.”[11] Nickelson claims he would have investigated a state malpractice claim and pursued discovery in a different manner, had such a claim been properly raised two years ago.

         The Tenth Circuit has determined that prejudice to the non-moving party is the most important factor in deciding a motion to amend the pleadings.[12] “Courts typically find prejudice only when the amendment unfairly affects the defendants ‘in terms of preparing their defense to the amendment.'”[13] This occurs, most often, “when the amended claims arise out of a subject matter different from what was set forth in the complaint and raise significant new factual issues.”[14] Nickelson, as the party opposing the amendment, has the burden of showing prejudice.[15]

         The court finds Nickelson's prejudice assertions insufficient to deny the motion to amend. Although the medical-malpractice and deliberate-indifferent claims are subject to different elements of proof, both claims arise from identical facts. The court notes the affirmative defenses contained in Nickelson's responsive pleading specifically address “any negligence claims asserted against [Nickelson]” and allege that in treating plaintiff, Nickelson “exercised the same degree of care, skill and diligence as other physicians and nursing staff would have exercised under similar circumstances.”[16] Defendant hasn't sufficiently demonstrated the different type of investigation or discovery he would have undertaken had the medical-malpractice claim been asserted in the initial complaint, much less made any non-speculative showing that he can no longer conduct such investigation or discovery.

         The court further observes that plaintiff filed his motion to amend within the scheduling-order deadline. No. discovery has been conducted to date, with the exceptions of Rule 26(a) initial disclosures and Nickelson's recently-served first interrogatories and requests for production of documents.[17] In light of the foregoing, the court finds any delay or prejudice insufficient to deny plaintiff's motion.

         Breach of ...


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