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Moreno v. Geo Group

United States District Court, D. New Mexico

October 23, 2017

JESUS MORENO, Plaintiff,



         THIS 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.[1] 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.


         Proceeding 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.[2] Id. Defendant Corizon removed the case to this Court on January 7, 2016, and answered on the same day. [Docs. 1, 3].

         On 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.[3] 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. [Doc. 12].

         After 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].

         Corizon 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.


         “[T]he 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. 2001)).


         Here, 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.

         Second, with amendment, Plaintiff seeks to cure deficiencies in his original and Amended Complaints. Id. at 3-4.

         Finally, 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.

         Corizon 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 ...

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