Haulcomb v. Cochran

          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 ...