Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Braham v. Perelmuter

United States District Court, D. Connecticut

November 23, 2016




         Pending before the Court is a motion by self-represented plaintiff Michael Braham (“plaintiff”) for Leave to File an Amended Complaint. [Doc. #130]. Plaintiff seeks to file a Third Amended Complaint to add new allegations against existing defendants Commissioner Semple and Johnny Wu in their individual capacities; to add five new defendants; and to add various factual allegations against the current defendants. See generally Doc. #130-2. For the reasons set forth below, plaintiff's Motion for Leave to File an Amended Complaint is DENIED.

         I. BACKGROUND

         On July 17, 2015, plaintiff, an incarcerated self-represented party, filed a Complaint and a Motion for Injunctive Relief against defendants Brian Perelmuter, Johnny Wu, Commissioner Scott Semple, and John Doe. [Docs. ##29, 30]. On July 22, 2015, Chief Judge Janet C. Hall issued an Initial Review Order, dismissing plaintiff's claims for monetary damages against defendants Wu and Semple in their individual capacities. [Doc. #6]. Plaintiff filed a motion to amend his Complaint on December 4, 2015, which Judge Hall granted, in part, on March 16, 2016. [Docs. ##62, 86]. Specifically, at that time, plaintiff was permitted to amend his Complaint to allege claims against a new defendant, Health Services Administrator Brown, in her individual capacity, and to add a claim sounding in retaliation against existing defendant Perelmuter in his individual capacity. See Doc. #86. Judge Hall denied plaintiff's motion to amend his Complaint to add a claim of conspiracy, to add claims against defendants Wu and Semple in their individual capacities, and to add Richard Benoit as a defendant. See Id. Plaintiff filed an Amended Complaint in accordance with this order on March 29, 2016. [Doc. #92]. He filed a Second Amended Complaint on April 18, 2016, adding defendant Sue O'Loughlin, whose identity had recently been disclosed to plaintiff. [Doc. #98]. At that time, plaintiff believed, based on the discovery materials he had received to date, that O'Loughlin “was responsible for the scheduling and facilitation” of plaintiff's dental treatment. Doc. #98 at 5.

         Defendants filed an Answer on May 17, 2016.[1] [Doc. #103]. Written discovery closed on May 30, 2016, and depositions were to be completed by June 30, 2016. [Doc. #97 at 4].

         On June 17, 2016, plaintiff filed a “Notice of Intent to Amend Complaint.”[2] [Doc. #106]. Plaintiff's Notice indicated that, based on answers he had received to the written depositions of defendants Brown and O'Loughlin, plaintiff would be seeking leave of the Court to amend his Complaint to add two additional defendants: “Sheryl Estrom and the ‘facility UR tracker, ' or the ‘CMHC UR Scheduler'[.]” Doc. #106 at 1.

         Plaintiff sought this amendment based on new information he had received relating to the question of who was responsible for scheduling an appointment for plaintiff to receive dental treatment. Plaintiff had propounded written deposition questions to defendant O'Loughlin on April 12, 2016, [Doc. #112-7] and she responded on May 18, 2016. [Doc. #112-8]. Ms. O'Loughlin testified that she was not responsible for booking the dental surgery appointments for prisoners. Specifically, she testified as follows:

Q15: Okay, Ms. O'Laughlin [sic], isn't it true that you are responsible for scheduling dental surgeries for prison inmates?
A15: Let me clarify something for you, while I am an employee of UCONN Health Center, technically I work for the School of Dental Medicine under UCHC. It is the primary responsibility of clerks to book office appointments. I am not a clerk.
Q17: Please explain the process by which you schedule these inmate surgeries.
A17: Today, the process is as follows: The School of Medicine is contacted by CMHC with requests for available dates to book patient office visits. The oral and Maxillofacial Surgery Department offers varying dates over the next month or so and the CMHC chooses which patients that are to be assigned.
Q18: Now, according to the Director of Dental Services, Dr. Richard Benoit, once a dental surgery is approved by the Utilization Review Committee, the case is referred to you for scheduling, is that correct?
A18: No, as I said before, UCONN Health Center coordinates a date with CMHC at the availability of the UCONN Health center dental surgeons.

Doc. #112-7 at 3; Doc. #112-8 at 2-3. Plaintiff thus continued to seek information regarding the identity of any employees tasked with making dental appointments for prisoners like him.

         On July 27, 2016, the undersigned held a telephonic Status Conference, on the record. [Doc. #118]. At the conference, the Court ordered counsel for the defendants to “use her best efforts to identify the specific clerk responsible for scheduling plaintiff's dental appointment” and to provide the name of said clerk to plaintiff on or before August 17, 2016. Doc. #118 at 2. In light of the Court's rulings at that conference, the Court extended the dispositive motion deadline from July 29, 2016, to September 30, 2016. Id. at 4.

         On August 18, 2016, defendants filed a Status Report asserting that “the identity of the requested clerks cannot be readily attained, ” and that “Ms. O'Loughlin was the individual who assumed responsibility for scheduling surgical procedures with oral surgeons in the out-patient clinic in the School of Dental Medicine under UCHC during the period 2014-2015.” Doc. #122 at 1. This assertion was in direct contradiction to defendant O'Loughlin's sworn deposition testimony. On August 31, 2016, the undersigned held a telephonic status conference to address this ongoing issue. See Doc. #129. During the conference, plaintiff again indicated that he intended to seek leave to amend his Complaint to add additional defendants. Plaintiff was advised “that the Court is unlikely to grant such a motion at this late stage of the proceedings, particularly where discovery is now closed and the deadline for filing dispositive motions is less than a month away.” Id. at 3. On September 2, 2016, plaintiff filed the instant Motion to Amend his Complaint, along with a proposed Third Amended Complaint. [Doc. #130].


         Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend his pleading “only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Rule 21 governs the addition of parties: “On motion or on its own, the court may at any time, on just terms, add or drop a party.” Fed.R.Civ.P. 21.

With respect to the interaction of Rules 15(a) and 21, it has been held that Rule 15(a) generally governs the amendment of complaints, but in the case of proposed amendments where new defendants are to be added, Rule 21 governs. The perceived supremacy of Rule 21 is, however, of no practical consequence, since it is generally held that the standards governing motions to amend under Rule 15 apply with equal force to motions to add parties under Rule 21.

Meyers v. Kishimoto, No. 3:14CV535(CSH), 2015 WL 4041438, at *3 (D. Conn. July 1, 2015) (quotation marks and citations omitted).

         In determining whether to grant leave to amend, the Supreme Court has held:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason - 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, futility of amendment, etc. - the leave sought should, as the rules require, be ‘freely given.'

Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, where, as here, a plaintiff moves for leave to amend the complaint to add new claims and parties, a court will look to factors including whether the opposing party is unduly prejudiced, whether plaintiff has unduly delayed in seeking the proposed amendment, and whether the proposed amendment would be futile. See, e.g., Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (“Leave to amend should be freely granted, but the district court has the discretion to deny leave if there is a good reason for it, such as futility, bad faith, undue delay, or undue prejudice to the opposing party.” (citing Foman, 371 U.S. at 182)).

         A. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.