United States District Court, D. New Mexico
GENE G. ELLIS, Plaintiff,
GERMAN FRANCO, VINCE VIGIL, ALISHA TAFOYA-LUCERO, COLLEEN MCCARNEY and HECTOR CARDENAS, Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER is before the Court on the Proposed Findings and
Recommended Disposition (PF&RD) by Chief Magistrate Judge
Karen B. Molzen (Doc. 76), filed on February 6,
2017, and Plaintiff's Objections to the Proposed Findings
and Recommended Disposition (Doc. 77), filed on
February 23, 2017. The Court, having conducted a de
novo review, overrules Plaintiff's objections and
adopts the recommendation of the Chief Magistrate Judge.
Plaintiff's Motion to Amend the Complaint (Doc.
68), filed December 19, 2016, will be denied.
Standard of Review
Federal Rule of Civil Procedure 72(a), when a party objects
to a magistrate[ judge's] ruling on non-dispositive
matters the district court must ‘modify or set aside
any part of the order that is clearly erroneous or is
contrary to law.'” Birch v. Polaris Indus.,
Inc., 812 F.3d 1238, 1246 (10th Cir. 2015). On the other
hand, “[i]f the district court refers dispositive
matters to a magistrate judge for a report and recommendation
. . . the district court ‘must determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.” Id. (quoting
Fed.R.Civ.P. 72(b)(3)). “[T]he difference between a
de novo review of a record and a review under the
clearly erroneous standard is significant.” Ocelot
Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th
Cir. 1988). Under de novo review, “[t]he
district judge is free to follow a magistrate's
recommendation or wholly to ignore it” whereas
“[t]he clearly erroneous standard . . . requires that
the reviewing court affirm unless it ‘on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.'” Id. (quoted
Rule 72's clear division between dispositive and
non-dispositive matters, [the Tenth Circuit has] held that
‘motions not designated on their face as dispositive
are nevertheless to be treated as such a motion when they
have an identical effect.'” Birch, 812
F.3d at 1246 (quoting Ocelot Oil Corp., 847 F.2d at
1462). The Tenth Circuit has not decided in a published
opinion whether a motion to amend the complaint is
dispositive and declined to do so in Birch.
Id. at 1247. One district court considering the
issue ruled that portions of a motion to amend seeking to add
parties was dispositive while an amendment to claimed damages
was not. See Nitchman v. Union Pacific R. Co., Inc.,
05-cv-01219-EWN-MEH, 2006 WL 2781416, at *2 (D. Colo. Sept.
26, 2006). On the other hand, the Tenth Circuit has generally
treated motions to amend as non-dispositive in its
unpublished opinions. See Lewis v. Clark, 663 F.
App'x 697, 702 (10th Cir. 2016) (unpublished); Franke
v. ARUP Laboratories, Inc., 390 F. App'x 822, 828
(10th Cir. 2010) (unpublished); Strope v. Collins,
315 F. App'x 57, 61 (10th Cir. 2009) (unpublished). And
other Circuits have explicitly held that motions to amend are
not dispositive. See Patel v. Meridian Health Sys.,
Inc., No. 15-3859, 2016 WL 6694545, at *2 (3d Cir. Nov.
15, 2016) (unpublished) (citations omitted).
these authorities, the Court is initially inclined to view
Plaintiff's Motion to Amend as nondispositive, meaning
that the clearly erroneous standard applies. However, out of
an abundance of caution the Court will proceed under the
de novo standard, as either standard leads to the
initiated this case on September 23, 2015. Doc. 1.
Thereafter, he amended and supplemented his Civil Rights
Complaint no less than eleven times, with the most recent
supplementation filed January 21, 2016. See Docs. 1, 7,
11, 16, 17, 19, 20, 21, 24, 34, 37, 44, 45. In his
Complaint and supplements, Plaintiff generally alleges that
Defendants violated his Eighth Amendment rights by refusing
to transfer him out of the Penitentiary of New Mexico's
general population, where he claims he is subject to assault
due to his sex offender status. See Docs. 1, 11, 25.
Plaintiff further alleges that Defendant Vigil retaliated
against him in violation of the First Amendment after the
present lawsuit was filed. See Docs. 16, 17, 25.
this Court addressed Plaintiff's claims for emergency
relief, on September 8, 2016, the Chief Magistrate Judge
ordered the Defendants to file a supplemental report pursuant
to Martinez v. Aaron, 570 F.2d 317, 320 (10th Cir.
1978), to investigate the incidents underlying
Plaintiff's lawsuit. Doc. 62. Defendants'
Martinez Report was originally due on December 7,
2016, but they were granted a brief extension to December 30,
2016. See Docs. 62, 66. In the interim, on December
19, 2016, Plaintiff filed the present motion seeking to
further amend his Complaint. Doc. 68.
Motion, Plaintiff requests leave to amend his Complaint to
name four additional Defendants, add additional claims
against two of these individuals, and substantially increase
his claims for compensatory and punitive damages. See
Chief Magistrate Judge recognized, at this stage in
litigation a party must seek leave of the court to amend his
complaint. Fed.R.Civ.P. 15(a)(2). While the Court
“should freely give leave [to amend] when justice so
requires[, ]” id., refusing leave to amend is
justified 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, or futility of the amendment.” Cohen v.
Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010)
(quotation omitted). The Chief Magistrate Judge recommended
denying Plaintiff's Motion to Amend on the grounds of
undue delay, undue prejudice, and futility of the amendment.
Doc. 76 at 4-8. The Court will address each in turn.
Chief Magistrate Judge noted, “'undue delay'
may be an appropriate justification for denying a motion to
amend.” Cohen, 621 F.3d at 1313 (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). This is
especially true where “the party filing the motion has
no adequate explanation for the delay.” Frank v.
U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)
(citation omitted). “Furthermore, where 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, the motion to amend
is subject to denial.” Id. at 1366 (quoted
Chief Magistrate Judge found that Plaintiff's delay in
seeking leave to amend was undue because his proposed
amendment was filed eleven months after his most recent
supplementation, without explanation for the delay, and
alleges facts and claims that were known to Plaintiff since
this case's inception. Doc. 76 at 4-5.
Plaintiff's objections to the PF&RD do not explain
why he delayed in seeking leave to amend. See Doc.
77. In fact, as to Plaintiff's proposed claim
against Officers Sutton and Oroz, Plaintiff admits in his
objections that he was aware of the identities of the
officers at the time they allegedly assaulted him.
Id. at 1. Plaintiff also does not dispute that he
was aware of the ...