United States District Court, S.D. Alabama, Southern Division
ORDER
KRISTI
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE
This
action is before the Court on Plaintiff Nicholas
Haulcomb's Motion for Leave to Amend Complaint,
Plaintiff's Motion to Supplement the Record [and his
Complaint] by Inclusion of Affidavits, Defendant NaphCare,
Inc.'s response in opposition, Defendant Sam Cochran and
the Correctional Officers' response in opposition,
Plaintiff's second Motion to Supplement Record by
Inclusion of Affidavits, and Defendant NaphCare's
response in opposition (docs. 57, 62, 64, 66, 70,
72).[1]
Upon
consideration, and for the reasons set forth herein, the
motion is GRANTED in part and DENIED in
part. Accordingly, Plaintiff shall file on
or before January 14, 2019, an Amended Complaint which
conforms with this Court's order. Defendants
shall file their answer or other response, on or before
January 28, 2019. The newly added Defendants
shall file their answer or other response in accord with S.D.
Ala. Local Rule 15(c) (“The time for a party that has
not appeared in the action to serve an answer or other
responsive pleading begins to run when that party is properly
served with the amended pleading.”) and Fed.R.Civ.P.
12(a) (setting the time period within which to file an answer
or other response).
A.
Standard of review
At this
stage in the litigation, and absent Defendant's written
consent, Rule 15(a)(2) instructs the Court that it
“should freely give leave” to amend “when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Therefore,
“unless a substantial reason exists to deny leave to
amend, the discretion of the district court is not broad
enough to permit denial[.]” City of Miami v. Bank
of America Corp., 800 F.3d 1262, 1286 (11th Cir. 2015)
(citation omitted). The Court “may consider several
factors when deciding whether to grant a motion to amend,
including ‘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, [and] futility of amendment.” Perez v.
Wells Fargo N.A., 774 F.3d 1329, 1340-1341 (11th Cir.
2014) (citing Equity Lifestyle Properties, Inc. v.
Florida Mowing & Landscape Services, Inc., 556 F.3d
1232, 1241 (11th Cir. 2009) (quoting Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962)); Donley v.
City of Morrow, Georgia, 601 Fed.Appx. 805, 810 (11th
Cir. 2015) (same).
Since
futility is a factor for the Court to consider, it “may
deny leave to amend a complaint if it concludes that the
proposed amendment would be futile, meaning that the amended
complaint would not survive a motion to dismiss.”
Christman v. Walsh, 416 Fed.Appx. 841, 844 (11th
Cir. 2011); Cockrell v. Sparks, 510 F.3d 1307, 1310
(11th Cir. 2007); Burger King Corp. v. Weaver, 169
F.3d 1310, 1320 (11th Cir. 1999) (if the proposed amended
complaint could not survive scrutiny under Rule 12(b)(6),
then allowing the amendment would be futile and the motion
for leave to amend should be denied); Hatcher v. Alabama
Dep't of Human Services, ___ Fed.Appx. ___, 2018 WL
4151171, at *2 (11th Cir. Aug. 29, 2018) (“‘a
district court may properly deny leave to amend the complaint
under Rule 15(a) when such amendment would be futile,'
such as ‘when the complaint as amended is still subject
to dismissal'....”) (citations omitted).
To
reach a decision, the Court must accept “the
allegations in the complaint as true and constru[e] them in
the light most favorable to the plaintiff.” Nunez
v. J.P. Morgan Chase Bank, 2016 WL 1612832, at *1 (11th
Cir. Apr. 22, 2016) (quoting Ironworkers Local Union 68
v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th
Cir. 2011)). “Even when assertions in a complaint are
arguably ambiguous, they should be construed in the light
most favorable to the plaintiff.” Id. (citing
Miccosukee Tribe of Indians of Fla. v. S. Everglades
Restoration Alliance, 304 F.3d 1076, 1083-84 (11th
Cir.2002). “To survive a motion to dismiss, a complaint
need only contain sufficient facts, accepted as true, to
‘state a claim to relief that is plausible on its
face' and must ‘raise a right to relief above the
speculative level.'” Id., (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 555,
127 S.Ct. 1955, 1974 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Twombly, 550 U.S. at 570. When applying the standard
for a motion to dismiss, the court should “1) eliminate
any allegations in the complaint that are merely legal
conclusions; and 2) where there are well-pleaded factual
allegations, assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
American Dental Association v. Cigna Corp., 605 F.3d
1283, 1290 (11th Cir. 2010) (internal quotation and citation
omitted).
B.
Analysis
1.
The proposed amended complaint
Plaintiffs'
motion for leave to amend his complaint does not comply with
S.D. Ala. Civil Local Rule 15 (“Amended and
supplemental pleadings”). Specifically, Plaintiff did
not specifically set out the proposed amendments in his
motion and he did not attach a copy of the proposed amended
complaint. S.D. Ala. Civ. L.R. 15(b). However, Plaintiff
previously filed an amended complaint which was stricken
(doc. 52). Now, Plaintiff moves the Court to reconsider the
order to strike and allow him to file this amended complaint
(docs. 54, 56). Apparently, the amended complaint (doc. 52)
is the proposed amended complaint, which Plaintiff seeks
leave of court to file.
For
purposes of this Order, the Court will consider the stricken
amended complaint as the proposed amended
complaint.[2] Comparison of the complaint and the
proposed amended complaint shows that Plaintiff seeks to add
numerous factual allegations, two new claims for relief,
thirteen new defendants, and unspecified claims on behalf of
numerous other inmates at the Metro Jail.
2.
Amendments to pleadings after the motion for summary
judgment has been filed
Defendants
point out that dispositive motions have been filed. They
argue that Plaintiff should not be allowed to avoid his
obligation to respond to the motion for summary judgment by
filing a motion for leave to amend the complaint.
Plaintiff
filed his pro se complaint on January 24, 2018 (doc.
1). Within two days, Plaintiff moved to amend to correct an
address and to clarify that he improperly identified Sheriff
Cochran as Defendant # 2 instead of Warden Oliver. The
amendment was allowed (doc. 12). Plaintiff proceeded pro
se until after the answer and special report were
converted to a motion for summary judgment. On August 30,
2018, counsel filed a notice of appearance and requested
additional time to respond to the motion. Plaintiff was
granted thirty days. During that time period, Plaintiff filed
a pro se motion for leave to amend his complaint,
which was stricken on basis that he was now represented by
counsel. Plaintiff through counsel then filed an amended
complaint, which was stricken on basis that he did not move
for leave to amend and therefore, had not obtained leave of
court. Plaintiff through counsel filed the instant motion for
leave to amend.
Although
the motion for leave to amend was filed after the motion for
summary judgment, the Court finds that Plaintiff should be
given at least one opportunity to amend his complaint before
it is subject to dismissal with prejudice. See Bryan v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). The Court
is aware that Plaintiff already amended his complaint once.
However, allowing those minor amendments - to correct an
address and a name - does not foreclose this opportunity to
amend the complaint in the face of possible dismissal if a
dispositive motion should be granted in Defendant's
favor. Moreover, Rule 15(a) provides that leave to amend
“shall be freely given when justice so requires.”
Therefore, Defendants' argument that Plaintiff should not
be allowed to amend his complaint to avoid responding to the
motion for summary judgment does not provide a basis to deny
Plaintiff's motion for leave to amend.
3.
Impermissible shotgun pleading
Defendants
argue that the proposed amended complaint is an impermissible
shotgun pleading and leave to amend should be denied on that
basis. They assert that Plaintiff did not allege what
specific conduct supports each claim and did not allege how
each defendant is responsible for the alleged constitutional
violations or medical negligence. Defendants point out that
Plaintiff makes it impossible to determine which allegations
are directed to which claim because he incorporates by
reference all 200 plus preceding paragraphs, into each count,
as well as incorporating each count into the next. Defendants
also point out that many paragraphs contain irrelevant
allegations and legal arguments that are inappropriate in a
complaint.
The
Middle District of Alabama recently explained the types of
shotgun pleadings, as follows:
A complaint “must contain ... a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Each allegation in
the complaint “must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1). The complaint must also
“state [the plaintiff's] claims ... in numbered
paragraphs, each ...