United States District Court, D. Connecticut
RULINGS ON PLAINTIFF'S MOTION TO AMEND COMPLAINT
AND MOTION TO COMPEL DISCOVERY [DOC. 28 & 29] AND
DEFENDANTS' MOTION FOR LEAVE TO DEPOSE
PERSON CONFINED IN PRISON [DOC. 27]
CHARLES S. HAIGHT, JR. Senior United States District Judge.
se plaintiff Andrew El-Massri, an inmate currently
incarcerated at Garner Correctional Institution in Newtown,
Connecticut, has filed a civil rights complaint pursuant to
42 U.S.C. § 1983 against the New Haven Correctional
Center ("NHCC"), where he was previously confined,
and seven of the facility's employees in their individual
and official capacities. These individual defendants include:
Deputy Warden Marmora, Lieutenant Cacioli, Lieutenant Lewis,
Lieutenant Williams, Officer Hebert, Officer McGivney, and
Nurse Goode. In his complaint, El-Massri sued the defendants
for violating his Eighth Amendment protection against cruel
and unusual punishment, seeking monetary, injunctive, and
declaratory relief. Doc. 1 (Complaint), at 8-9.
August 7, 2018, this Court granted El-Massri's motion to
proceed in forma pauperis. Doc. 6, 7. Thereafter,
pursuant to the Court's screening duties under 28 U.S.C.
§ 1915A, the Court reviewed Plaintiff's complaint
and dismissed it in part. See 28 U.S.C. §
1915A(b)(1)-(2) (mandating that the Court review a
prisoner's civil complaint and dismiss any portion that
"(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
relief"). Specifically, the Court dismissed all claims
against NHCC because a correctional institution is not a
"person" within the meaning of 42 U.S.C. §
1983 so there was no arguable legal basis to proceed with a
§ 1983 claim against NHCC. The Court also dismissed all
claims against the remaining defendants in their official
capacities because those claims were barred by the Eleventh
Amendment, and in any event, failed to state plausible claims
for declaratory and injunctive relief. The case was allowed
to proceed on the Eighth Amendment claims for excessive force
(against Williams, Cacioli, Lewis, and Hebert) and failure to
intervene against such force (against McGivney and Goode);
deliberate indifference to medical needs (against all
individual defendants); and unconstitutional conditions of
confinement (against all individual
defendants). Each such claim was allowed to proceed
against the individual defendants (herein
"Defendants") solely in their personal capacities
parties have filed three pending motions. The motions
include: Plaintiff's "Motion For Permission to Amend
the Complaint" [Doc. 28], Plaintiff's "Motion
to Compel Discovery" [Doc. 29], and Defendants'
"Motion for Leave to Depose [Plaintiff, A] Person
Confined in Prison" [Doc. 27]. Defendants have filed an
objection to Plaintiff's motion to compel. Doc. 30. No
other objections or responses have been filed to these
motions. The Court resolves the motions herein.
Plaintiff's Motion to Amend Complaint [Doc. 28]
has filed a motion seeking the Court's leave to amend his
complaint by adding numerous new defendants and claims. He
argues that these amendments are needed "due to new
evidence [he has] obtained." Doc. 28, ¶ 1.
Standard for Leave to Amend - Rule 15, Fed. R. Civ.
P., and Foman
to Rule 15(a), Fed. R. Civ. P., a plaintiff may amend his
complaint once as a matter of course 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) or of a Rule 12(b), (e), or (f) motion,
whichever is earlier. See Fed. R. Civ. P.
15(a)(1)(A) and (B). See also, e.g., Baines v.
Pillai, No. 3:16-CV-01374 (CSH), 2017 WL 1375168, at *1
(D. Conn. Apr. 10, 2017); Taurus B, LLC v. Esserman,
No. 3:14-CV-715 CSH, 2014 WL 4494398, at *1 (D. Conn. Sept.
other cases, the plaintiff may amend his complaint only with
"the opposing party's written consent or the
court's leave," which should be "freely give[n]
when justice so requires." Fed.R.Civ.P. 15(a)(2).
"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) (discussing Rule 15(a)).
"This relaxed standard applies with particular force to
pro se litigants." Pangburn v.
Culbertson, 200 F.3d 65, 70 (2d Cir. 1999). "A
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." Id.
(emphasis in original; citation, internal quotation marks,
and brackets omitted).
case at bar, Plaintiff filed his motion for leave to amend
the complaint [Doc. 28] on April 1, 2019, more than four
months after the named Defendants answered his complaint
[Doc. 14]. He may not, therefore, amend his complaint as a
matter of right under Rule 15(a)(1). Rather, he must obtain
the opposing parties' written consent or the leave of
the motion papers Plaintiff has submitted are deficient.
First, under Local Civil Rule 7(f), "[a]ny motion to
amend a party's pleading under Fed.R.Civ.P. 15(a) that
requires leave of court shall (1) include a statement of the
movant that: (i) the movant has inquired of all non-moving
parties and there is agreement or objection to the motion; or
(ii) despite diligent effort, including making the inquiry in
sufficient time to afford non-movant a reasonable opportunity
to respond, the movant cannot ascertain the position(s) of
the non-movant(s) . . . ." Plaintiff's motion
includes no such statement regarding the non-moving
addition, pursuant to Local Civil Rule 7(a), a motion which
involves disputed issues of law "shall be accompanied by
a memorandum of law" and "[f]ailure to submit a
required memorandum may be deemed sufficient cause to deny
the motion." The motion itself is not a memorandum of
if one seeks amendment of a pleading, one must affix a copy
of the proposed amended pleading to his Rule 15 motion.
See 3 JAMES WM. MOORE ET AL., MOORE'S FEDERAL
PRACTICE ¶¶ 15. 17 (3d ed. 2004). This is
because failure to attach the proposed amendment may prevent
the Court from determining whether leave is proper under the
Foman standard. See, e.g., Gulley v.
Dzurenda, 264 F.R.D. 34, 36 (D. Conn. 2010) (citing
Harris v. City of Auburn, 27 F.3d 1284, 1287 (7th
Cir.1994) (holding that in light of the requirement that the
district court review the merits of the party's request
for leave to amend, the party's failure to tender the
amended complaint demonstrated a lack of diligence or good
faith)). The court must be able to examine the substance of
the proposed amendment to determine, for example, whether,
under Foman, the claims are "futile" or
fail to state claims upon which relief may be granted.
have thus repeatedly held that a party's failure to
submit a proposed amended pleading with a motion to amend
shows "a lack of diligence and good faith."
See, e.g., State Trading Corp. of India Ltd. v.
Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d
Cir.1990) (imputing a lack of good faith to plaintiff in part
because "when [plaintiff] did seek leave to amend, it
did not file a proposed amended complaint");
Rosendale v. Iuliano, 67 Fed.Appx. 10, 14 (2d Cir.
2003) (holding district court did not abuse its discretion by
denying motion to amend because "[w]ithout a proposed
pleading, the district court could not determine whether
[plaintiff's] claim could survive a motion to dismiss,
whether it was futile, or whether it was frivolous");
Twohy v. First Nat'l Bank of Chicago, 758 F.2d
1185, 1197 (7th Cir.1985) ("normal procedure is for the
proposed amendment or new pleading to be submitted" with
the motion for leave to amend, and that failure to do so
"indicates a lack of diligence and good faith").
Plaintiff is pro se, the Court will deny the motion
to amend without prejudice and grant him a
designated date by which to refile said motion in the proper
form under Local Civil Rule 7(f) and Federal Civil Rule 15.
To comply, in his motion, Plaintiff must indicate that he has
inquired of Defendants and there is agreement or objection to
the motion; or despite diligent efforts, he has been unable
to ascertain their positions, D. Conn. L. Civ. R. 7(f). Along
with his motion, Plaintiff must file an accompanying
memorandum of law, id. 7(a), and a proposed amended
complaint. He is further cautioned that in drafting such an
amended pleading, he should review this Court's IRO [Doc.
9] and, pursuant to 28 U.S.C. § 1915A, avoid including
any claim that "(1) is ...