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Cosby v. Tawana

United States District Court, D. Connecticut

October 18, 2019

HOWARD W. COSBY, Plaintiff,
TAWANA, et al., Defendants.


          Michael P. Shea United States District Judge

         The 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.

         I. Motion to Amend (ECF No. 40)

         This 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.

         The 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.

         In 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.

         Federal 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.

         The 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.

         II. Motion for Settlement Conference (ECF No. 45)

         The 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 warranted.

         The 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.

         III. Motions for Protective Order (ECF Nos. 49-50)

         The 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.

         Federal 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 ...

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