United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before me on Defendant Corizon's Motion to
Dismiss & Strike Plaintiff's “Amended
Complaint” [Doc. 12], filed on January 19, 2017, and on
Plaintiff's Motion for Leave to File Second Amended
Complaint [Doc. 27], filed September 15, 2017. The case was
referred to me by the Honorable Judith C. Herrera, United
States District Judge, for proposed findings and a
recommended disposition. [Doc. 7]. I find that justice
requires granting Plaintiff leave to file his Second Amended
Complaint. Thus, Defendant's Motion to Dismiss should be
denied as moot.
pro se, Plaintiff filed his original complaint in state court
on September 3, 2015. [Doc. 1-1] at 2-6. He alleged that a
prison doctor, Mark Walden, sexually abused him during
medical visits, touching his genitalia, anus, groin, and
buttocks in a sexual manner to gratify the doctor's own
sexual desire, which violated Plaintiff's constitutional
rights. Id. Defendant Corizon removed the
case to this Court on January 7, 2016, and answered on the
same day. [Docs. 1, 3].
December 16, 2016, Judge Herrera reviewed Plaintiff's
original complaint under Fed.R.Civ.P. 12(b)(6). [Doc. 10].
Plaintiff had titled his Complaint “Tort Civil Suit,
” and he alleged violation of his Fourth, Eighth, and
Fourteenth Amendment rights under the United States
Constitution. Id. at 1 (citing [Doc. 1-1] at 2-4).
Judge Herrera construed Plaintiff's constitutional claims
as having been brought under 42 U.S.C. § 1983.
Id. at 4. She determined that Plaintiff had failed
to allege sufficient facts to trigger Corizon's liability
even if Dr. Walden had abused Plaintiff. Id. at
4-6. She gave Plaintiff 30 days to amend his complaint to
adequately state claims against Corizon. Id.
Plaintiff responded within the 30-day deadline. [Doc. 11].
The Clerk docketed his filing as an Amended Complaint.
Id. Defendant Corizon moved to dismiss and strike
Amended Complaint because, Corizon argued, the Amended
Complaint still failed to state a claim against Corizon.
briefing was complete on the Corizon's Motion to Dismiss
and to Strike, the undersigned granted Mr. Moreno's
request for appointment of counsel on April 7, 2017, and
referred this case to the Court's pro bono panel. [Doc.
22]. Attorney Samantha Adams entered her appearance on behalf
of Plaintiff on September 11, 2017. [Doc. 25]. With Ms.
Adams' representation, Plaintiff filed a motion for leave
to file a Second Amended Complaint on September 15, 2017.
[Doc. 27]. In the proposed Second Amended Complaint,
Plaintiff re-asserts his claim against Corizon for violation
of his Eighth Amendment right as well as asserting several
state-law claims. [Doc. 27-1].
urges that its Motion to Dismiss (the Amended Complaint)
should be decided first, prior to entertaining the Motion for
Leave to File a Second Amended Complaint. [Doc. 30] at 3. I
disagree. It makes no sense to analyze a version of the
complaint that Plaintiff does not wish to pursue.
Accordingly, I address the Motion for Leave to File a Second
Amended Complaint first.
court should freely give leave [to amend a complaint] where
justice so requires.” Fed.R.Civ.P. 15(a). However,
there are reasons to properly deny leave to amend, such as
“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 amendment.” Foman v. Davis, 371
U.S. 178, 182 (1962); Curley v. Perry, 246 F.3d
1278, 1284 (10th Cir. 2001). An amendment is
“futile” if the pleading “as amended, would
be subject to dismissal.” Fields v. City of
Tulsa, 753 F.3d 1000, 1012 (10th Cir. 2014). The
decision whether to grant leave to amend is left to the
discretion of the district court. See e.g., Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
“The purpose of [Rule 15(a)] is to provide litigants
the maximum opportunity for each claim to be decided on its
merits rather than on procedural niceties.” Minter
v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.
2006) (internal quotation marks omitted). The Tenth Circuit
has directed district courts to grant leave to amend
“when doing so would yield a meritorious claim.”
Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir.
Plaintiff seeks leave to file a Second Amended Complaint for
several reasons. First, he has only recently secured counsel.
Plaintiff was proceeding pro se until September 11, 2017,
when Ms. Adams appeared on his behalf. The proposed Second
Amended Complaint would be the first pleading drafted with
the benefit of counsel. Not only were the original complaint
and the Amended Complaint drafted pro se, Plaintiff relied on
fellow inmates to translate for him because he neither writes
nor understands the English language. [Doc. 27] at 1-3.
with amendment, Plaintiff seeks to cure deficiencies in his
original and Amended Complaints. Id. at 3-4.
Plaintiff argues that there has been no undue delay, bad
faith, or dilatory motive; Plaintiff has diligently responded
to the Court's orders and deadlines. Id. at 4.
Further, Plaintiff argues that Corizon would not be
prejudiced by the amendment. Plaintiff's original
complaint was entitled “Tort Civil Suit, ” which
put Corizon on notice that Plaintiff intended to assert tort
claims. Plaintiff concedes that his original and Amended
Complaints failed to spell out the legal connections between
GEO Group, Corizon, and Dr. Walden. Nevertheless, Plaintiff
argues that Corizon cannot plausibly claim ignorance of the
connections. After all, Corizon employed Dr. Walden, was
aware of Plaintiff's pre-suite grievance(s), and has
prepared defenses to numerous similar claims asserted by
other victims. Id. at 4-5.
urges the Court to deny to the Motion for Leave to File
Second Amended Complaint for “failure to cure
deficiencies by amendments previously allowed.” [Doc.
30] at 4 (quoting Duncan v. Manager, Dep't of Safety,
City & Cty. of Denver, 397 F.3d 1300, 1315 (10th
Cir. 2005)). Corizon complains that the proposed Second
Amended Complaint does not really remedy the problems with
the original and Amended Complaints (both of which were filed
pro se). Corizon argues that in order to maintain his claim
under the Eighth Amendment, Plaintiff would have to allege
“specific factual contentions of a Corizon policy or
custom that was the moving force behind Dr. Walden's
[abuse].” Id. at 3-4. Corizon argues that
Plaintiff has failed to do so. Id. In his proposed
Second Amended Complaint Plaintiff alleges that Corizon and
others knew that Dr. Walden was sexually abusing inmates but
failed to stop him. Plaintiff alleges that Corizon and others
simply transferred Dr. Walden to another prison, fraudulently
concealing his wrongful actions, and recklessly exposing
other inmates to his abuse. [Doc. 27-1] at 7-10. Corizon does
not address these specific ...