United States District Court, D. Connecticut
HOWARD W. COSBY, Plaintiff,
TAWANA, et al., Defendants.
RULING AND ORDER
Michael P. Shea United States District Judge
plaintiff, Howard W. Cosby, has filed motions seeking leave
to file an amended complaint, requesting a settlement
conference, and to compel discovery, and has filed a letter
which the Court construes as a motion for preliminary
injunctive relief. The defendants have filed motions seeking
a protective order. For the following reasons, the
plaintiff's motions are denied without prejudice and the
defendants' corrected motion is granted in part.
Motion to Amend (ECF No. 40)
case concerns incidents occurring between December 18, 2018
and January 3, 2019, while Cosby was confined in the
restrictive housing unit at MacDougall-Walker Correctional
Institution (“MacDougall”). The claims remaining
after initial review are for violation of the plaintiff's
rights under the Americans with Disabilities Act and
Rehabilitation Act, deliberate indifference to medical needs
relating to two falls, unconstitutional conditions of
confinement in the restrictive housing unit, use of excessive
force and failure to intervene, and retaliation. See
Initial Review Order, ECF No. 9 at 27. The plaintiff seeks
leave to file an amended complaint. The motion must be denied
for two reasons.
proposed amended complaint names only four new defendants. It
does not include the twenty-one defendants ordered served in
the Initial Review Order. In addition, the proposed amended
complaint alleges only facts relating to the four new
defendants. An amended complaint completely replaces the
original complaint. See Arce v. Walker, 139 F.3d
329, 332 n.4 (2d Cir. 1998) (“It is well-established
that an amended complaint ordinarily supersedes the original
complaint and renders it of no legal effect.” (internal
citation and quotation marks omitted)). If the Court were to
apply this rule, most of the claims remaining after initial
review and all claims against the original defendants would
be considered abandoned. This does not appear to have been
the plaintiff's intent.
addition, although not mentioned in the proposed amended
complaint, the plaintiff refers to sexual assault and sexual
harassment at Corrigan-Radgowski Correctional Center
(“Corrigan”) in his motion and has submitted
exhibits relating to these possible claims. All the
defendants work at MacDougall and all the claims occurred
there during a specific time period. The plaintiff's
allegation regarding occurrences at a different correctional
facility are not related to the claims in this case.
Rule of Civil Procedure 20 permits joinder of multiple
defendants in one action only if “any right to relief
is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions and
occurrences, and any question of law or fact common to all
defendants will arise in the action.” Fed.R.Civ.P.
20(a)(2). As the plaintiff's claims for sexual assault or
for any occurrence at Corrigan are unrelated to the claims in
this action, they would be improperly joined in this action.
If the plaintiff were to file an amended complaint including
those claims, the Court would sever the claims from this
action. See Fed. R. Civ. P. 21 (“On motion or
on its own, the court may at any time, on just terms, add or
drop a party” or “sever any claim against a
party” based on misjoinder). The plaintiff must pursue
his other claims in separate actions.
plaintiff's motion to amend is denied without prejudice.
The plaintiff may refile his motion to add to this case only
allegations against Officer Gerrish and Nurses Liz, Debbie,
and Joy relating to the remaining claims arising from events
at MacDougall between December 18, 2018 and January 3, 2019.
Motion for Settlement Conference (ECF No. 45)
plaintiff has filed a motion requesting a settlement
conference to avoid a trial in this case. He does not
indicate whether he has discussed settlement with
defendants' counsel or if counsel is amenable to
settlement discussions. Absent evidence that both parties are
willing to discuss settlement, a settlement conference is not
Court notes that the defendants have filed a motion seeking
to determine whether the plaintiff exhausted his
administrative remedies before commencing this action. In
light of their position that he did not do so, it does not
appear that the defendants would be willing to discuss
settlement at this time. The plaintiff's motion is denied
without prejudice to refiling if he can confirm counsel's
willingness to participate in a settlement conference.
Motions for Protective Order (ECF Nos. 49-50)
defendants seek a protective order to stay all discovery
unrelated to exhaustion of administrative remedies and ask
the Court to schedule an evidentiary hearing to review the
parties' evidence and determine whether the plaintiff
exhausted his administrative remedies regarding all claims
before he commenced this action. ECF No. 50 at 2. The
plaintiff has filed an objection to the motion. ECF No. 55.
Rule of Civil Procedure 26 governs protective orders. The
court, upon demonstration of good cause and evidence of good
faith discussions with the opposing party, has the discretion
to issue a protective order limiting the scope of discovery
to certain matters. Fed.R.Civ.P. 26(c)(1)(D). The defendants
have reported the results of their conference with the
plaintiff on this issue. To demonstrate good cause for the
motion, the defendants have submitted declarations from the
persons responsible for maintaining the various records
stating that the plaintiff did not fully ...