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El-Massri v. New Haven Correctional Center

United States District Court, D. Connecticut

May 7, 2019



          CHARLES S. HAIGHT, JR. Senior United States District Judge.


         Pro 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.[1] 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.

         On 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).[2] Each such claim was allowed to proceed against the individual defendants (herein "Defendants") solely in their personal capacities for damages.

         The 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.


         A. Plaintiff's Motion to Amend Complaint [Doc. 28]

         Plaintiff 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.

         1. Standard for Leave to Amend - Rule 15, Fed. R. Civ. P., and Foman

         Pursuant 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. 12, 2014).

         In all 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).

         In the 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 this Court.

         2. Analysis

         Here, 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 parties' position(s).

         In 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 law.

         Lastly, 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[1] (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.

         Courts 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").

         Because 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. ยง 1915A, avoid including any claim that "(1) is ...

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