United States District Court, D. Connecticut
MARCO A. MICHALSKI, Plaintiff,
SCOTT SEMPLE, et al., Defendants.
RULINGS ON MOTION TO AMEND COMPLAINT AND MOTION FOR
A. BOLDEN UNITED STATES DISTRICT JUDGE
December 13, 2016, Marco A. Michalski
(“Plaintiff” or “Michalski”), an
inmate confined at Cheshire Correctional Institution
(“Cheshire”), pro se filed a Complaint
under 28 U.S.C. § 1983 against several employees
(“Defendants”) of the Connecticut Department of
Correction (“DOC”) for violating his rights
guaranteed under the First, Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution. Compl. (ECF No.
1). Mr. Michalski then amended the Complaint, making the
Amended Complaint the operative complaint.
Michalski has moved to amend the Amended Complaint. ECF No.
41. He has also moved for default against certain Defendants.
ECF No. 43.
following reasons, the Court GRANTS Mr.
Michalski's motion to amend and accepts the Second
Amended Complaint and the addition of Deputy Warden Hannah
and Correction Officer Cardona. The Court
DISMISSES the Eighth Amendment claim against
Defendants Erfe and Hannah. As shown below, the Court finds
that plaintiff has stated plausible claims under the First
Amendment Free Exercise Clause and RLUIPA against Erfe,
Hannah, and Cardona.
Court DISMISSES all claims against
Defendants Mataos, Sterno, Lawler and Williams.
Court DENIES, without prejudice, Mr.
Michalski's motion for entry of default against all
October 6, 2017, this Court issued an Initial Review Order
dismissing Mr. Mitchalski's Fifth, Eighth, and First
Amendment retaliation claims as stated in the Amended
Complaint. Initial Review Order at 2, ECF No. 23. The Court
allowed Plaintiff's First Amendment Free Exercise and
Establishment Clause claims and Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) claim to
proceed against twenty-three defendants: Semple, Rinaldi,
Bruno, Shamma, Erfe, Laffargue, Valeriano, Williams, Mataos,
Milio, Yaharey, St. John, Tello, Ellis, Edwards, Sterno,
Lawler, Viska, Robinson, Lopes, King, Buckland, and
Whitehead. Id. The Court also permitted Mr.
Michalski's Fourteenth Amendment Equal Protection Clause
claims to proceed against defendants Semple, Rinaldi, Bruno,
Shamma, Erfe, and Laffargue. Id.
Clerk of the Court thereafter informed the Court that it was
unable to effect service on Defendants Mataos, Sterno,
Lawler, and Williams. See Order, ECF No. 28. The
Court, therefore, directed Mr. Michalski to file a notice
with the full names and mailing addresses of those four
Defendants. Id. The remaining Defendants submitted
waivers of service packets, and their responses to the
Amended Complaint came due on December 23, 2017. See
ECF No. 38. Those Defendants have not yet submitted their
December 27, 2017, Mr. Michalski filed this motion to amend
the Amended Complaint (ECF No. 42). Because he was unable to
obtain more information on Defendants Mataos, Sterno, Lawler,
and Williams, Mr. Michalski seeks to remove those Defendants
from the case. Mot. to Amend Compl. at 1. He also attached a
Second Amended Complaint, adding two new defendants: Deputy
Warden Hannah and Correction Officer Cardona and one more
claim of deliberate indifference to safety, in violation of
the Eighth Amendment, against Defendants Erfe and Hannah.
See Id. at ¶¶ 173, 178.
also filed a motion for an entry of default against
defendants Semple, Rinaldi, Bruno, Shamma, Erfe, Laffargue,
Valeriano, Milio, Yaharey, St. John, Tello, Ellis, Edwards,
Viska, Robinson, Lopes, King, Buckland, and Whitehead for
their failure to respond to the first amended complaint. Mot.
for Entry of Def. ECF No. 43.
MOTION TO AMEND
plaintiff may amend his complaint once as a matter of right
within twenty-one days after service of the complaint or
within twenty-one days after service of a responsive pleading
(i.e. answer or motion to dismiss), whichever is earlier.
See Fed. R. Civ. P. 15(a)(1)(A) and (B);
O'dell v. Bill, 13 Civ. 1275 (FJS/TWD), 2015 WL
710544, *44 (N.D.N.Y. Feb. 18, 2015). In all other cases, the
plaintiff may amend the complaint only with leave from the
Court. Fed.R.Civ.P. 15(a)(2). Rule 15(a)(2) of the Federal
Rules of Civil Procedure requires that permission to amend a
complaint “shall be freely given when justice so
requires.” “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 the allowance of
the amendment, futility of the amendment, etc. - the leave
should, as the rules require, be ‘freely
given.'” Foman v. Davis, 371 U.S. 178, 182
(1962). “This relaxed standard applies with particular
force to pro se litigants.
pro se complaint is to be read liberally, and should
not be dismissed without granting leave to amend at least
once when such a reading gives any indication that a
valid claim might be stated.” Pangburn v.
Culbertson, 200 F.3d 65, 70 (2d Cir. 1999) (emphasis in
original; internal quotations omitted).
decision whether to grant leave to amend a complaint is
within the Court's sound discretion. See Foman,
371 U.S. at 182. “The rule in the Second Circuit has
been to allow a party to amend its pleadings in the absence
of prejudice or bad faith.” Independence Ins. Serv.
Corp. v. Hartford Fin. Services Grp, Inc., 04 Civ. 1512
(JCH), 2005 WL 1038991, *4 (D. Conn. May 3, 2005) (citing
State Teachers Retirement Bd. v. Fluor Corp., 654
F.2d 843, 856 (2d Cir. 1981)). In determining what
constitutes prejudice, the Court considers whether the
amendment would (1) require the defendant to expend
significant additional resources to conduct discovery and
prepare for trial, (2) significantly delay the resolution of
the dispute, or (3) prevent the plaintiff from bringing a
timely action in another jurisdiction. Id. at *5
(citing Block v. First Blood Associates, 988 F.2d
344, 350 (2d Cir. 1993)).
more than twenty-one days have passed since the service of
Mr. Michalski first amended complaint (ECF No. 16-1). The
Clerk of the Court effected service of the Amended Complaint
on October 24, 2017; see ECF No. 27; and Mr.
Michalski filed this motion to amend the Amended Complaint on
December 27, 2017. Thus, Mr. Michalski is no longer entitled
to amend as a matter of right under Rule 15(a). Because
Defendants have yet to submit their responsive pleadings,
however, the ...