Opinion
Civil Action No. 9:14-CV-0116 (TJM/DEP)
08-21-2015
DAVID CINTRON, Plaintiff, v. DR. EVELYN WEISSMAN, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: DAVID CINTRON, Pro se 08-A-4014 Southport Correctional Facility P.O. Box 2000 Pine City, NY 14871 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 CHRISTOPHER W. HALL, ESQ. Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF:
DAVID CINTRON, Pro se
08-A-4014
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871
FOR DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
CHRISTOPHER W. HALL, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT, RECOMMENDATION, AND ORDER
Pro se plaintiff David Cintron, a New York State prison inmate, has commenced this action against several individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his Eighth Amendment right to receive adequate medical care by failing to treat injuries sustained from eating contaminated prison food.
Currently pending before the court are several motions filed by the parties, including (1) plaintiff's motion seeking the entry of summary judgment in his favor relating to a version of his complaint that has been superseded; (2) defendants' motion for summary judgment seeking dismissal of the currently operative amended complaint; and (3) four requests by the plaintiff to amend or supplement the operative amended complaint in this matter. For the reasons set forth below, plaintiff's motions to amend and supplement the amended complaint are granted in part and denied in part. In light of that ruling, I recommend that the parties' motions for summary judgment be denied, without prejudice, as moot.
I. BACKGROUND
Plaintiff is a prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 68. While he is now incarcerated elsewhere, at the times relevant to this action, plaintiff was confined in the Upstate Correctional Facility ("Upstate"), located in Malone, New York. Id.
Upstate is a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined for twenty-three hours each day, primarily for disciplinary reasons. Samuels v. Selsky, No. 01-CV-8235, 2002 WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002).
On April 10, 2011, plaintiff was eating his Kosher dietary loaf when he bit into what he alleges was a "small piece of glass." Dkt. No. 68 at 12. After he began "to spit [b]lood that was coming from [his] tongue," plaintiff alerted Sergeant Debyah, who is not a named defendant in the action. Id. After being notified of the incident, Sergeant Debyah retrieved a nurse, defendant Denise Reome, and plaintiff showed her his tongue that was still bleeding, as well as the piece of glass found in his food. Id. at 13. Defendant Reome notified a doctor, who plaintiff believed, until recently, to be defendant Evelyn Weissman, of the plaintiff's complaint. Id. at 13-14. Defendant Weissman allegedly told defendant Reome to instruct plaintiff to submit a sick call request. Id. at 14. Before defendant Reome walked away from plaintiff's cell, she denied plaintiff's requests for medication to stop the bleeding and for the pain. Id.
Plaintiff identifies defendant Reome throughout his pleadings as "Denise Maas." See e.g., Dkt. No. 68 at 1; Dkt. No. 73 at 1. Since the commencement of this action, however, that defendant has changed her last name to "Reome." Dkt. No. 70-3 at 1. The clerk of the court is respectfully directed to modify the court's records to reflect this change.
As will be discussed more completely below, plaintiff seeks to amend the currently operative amended complaint by joining Dr. Ira Weissman in place of defendant Evelyn Weissman. Dkt. Nos. 74, 82, 84.
According to plaintiff, the next day, defendant J. Bergeron, a nurse employed at Upstate, denied his requests to schedule an appointment with a doctor, arrange for x-rays, and provide for medication to relieve his pain. Dkt. No. 68 at 15. Similarly, although defendant Evelyn Weissman was present in plaintiff's block on April 11, 2011, she did not visit him at his cell or otherwise provide him with any treatment. Id. Notwithstanding that plaintiff's tongue was still bleeding, defendant Marla Travers, another nurse stationed at Upstate, also refused plaintiff's requests to see a doctor and for x-rays on April 12, 2011. Id. at 16.
Plaintiff filed a grievance, complaining of food contamination and the failure of prison medical personnel to treat his injuries, on April 10, 2011. Dkt. No. 70-2 at 4-6; Dkt. No. 85-2 at 9-11. After an investigation, the superintendent at Upstate denied plaintiff's grievance, and plaintiff thereafter appealed to the DOCCS Central Office Review Committee ("CORC"). Dkt. No. 70-2 at 8. The CORC affirmed the superintendent's decision on April 18, 2011. Dkt. No. 70-2 at 10.
II. PROCEDURAL HISTORY
Plaintiff commenced this action with the filing of a complaint and accompanying application for leave to proceed in forma pauperis ("IFP") and motion for the appointment of pro bono counsel on or about February 3, 2014. Dkt. Nos. 1, 2, 4. On April 16, 2014, Senior District Judge Thomas J. McAvoy issued a decision and order, pursuant to 42 U.S.C. §§ 1915(e), 1915A, (1) granting plaintiff's IFP request, (2) denying his request for appointment of counsel, (3) dismissing plaintiff's claim that the defendants falsified his medical records, and (4) directing defendants Evelyn Weissman, Reome, and Travers to respond to the Eighth Amendment deliberate medical indifference claim asserted in the complaint. See generally Dkt. No. 6. Defendants Evelyn Weissman, Reome, and Travers thereafter filed answers to the complaint. Dkt. Nos. 17, 27.
On December 8, 2014, plaintiff filed a motion for leave to amend his complaint. Dkt. No. 42. The proposed revised pleading reasserted plaintiff's Eighth Amendment medical indifference claim against defendants Evelyn Weissman, Reome, and Travers, and sought permission to add one new defendant, J. Bergeron. See generally id. Before a decision on plaintiff's motion to amend was issued, plaintiff submitted a motion seeking the entry of summary judgment in his favor on December 31, 2014. Dkt. No. 49. On March 23, 2015, while plaintiff's motion for summary judgment was pending, the court issued an order granting plaintiff's motion for leave to amend the complaint. Dkt. No. 67. In that order, Judge McAvoy granted plaintiff permission to submit a motion to amend within thirty days of the order in the event he wished to substitute a new defendant in place of defendant Evelyn Weissman. Id. at 8. Pursuant to Judge McAvoy's order, the amended complaint superseded and replaced the previously filed complaint, and became the operative pleading in the matter. Id. at 9.
On April 24, 2015, defendants moved for summary judgment seeking dismissal of plaintiff's amended complaint arguing, inter alia, that plaintiff failed to exhaust the available administrative remedies before filing this action. Dkt. No. 70. Three days later, in a submission signed on April 10, 2015, plaintiff filed a further motion for leave to amend the amended complaint. Dkt. No. 73. Plaintiff subsequently submitted a request, dated April 28, 2015, to substitute Dr. Ira Weissman in place of Evelyn Weissman as a defendant, based on submissions included in support of defendants' pending motion for summary judgment, in which defendants' counsel stated that Ira Weissman, rather than Evelyn Weissman, was the doctor working at a facility on April 10, 2011. Dkt. No. 74.
On May 21, 2015, the court received a letter motion from the plaintiff requesting permission to add certain discrete factual allegations to his proposed amended complaint and to join Amber A. Lashway, a nurse employed at Upstate, as an additional defendant. Dkt. No. 82. Plaintiff thereafter filed a nearly identical request, on or about June 8, 2015, for leave to add factual allegations to his proposed amended pleading and join Lashway as a defendant. Dkt. No. 84. On the same date, the court received plaintiff's opposition to defendants' motion for summary judgment. Dkt. No. 85. Defendants have responded to plaintiff's multiple motions seeking leave to amend his amended complaint and join additional parties, and plaintiff has since filed a reply in further support of his applications. Dkt. Nos. 86, 87.
Both of the parties' motions for summary judgment are now fully briefed and have been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
Plaintiff's motions to amend and join additional parties, being non-dispositive, fall within the scope of my jurisdiction pursuant to 28 U.S.C. § 636(b)(1)(A), and have therefore been addressed in the order portion of this opinion. See, e.g., Kilcullen v. N.Y. State Dep't of Transp., 55 F. App'x 583, 584 (2d Cir. 2003) (referring to a motion to amend as a non-dispositive motion).
III. DISCUSSION
A. Plaintiff's Requests for Leave to Amend the Amended Complaint and Join Additional Parties
Plaintiff's motion for leave to amend and to add new defendants implicates both Rule 15 and Rule 21 of the Federal Rules of Civil Procedure. Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that unless amendment as a matter of right is permitted - a circumstance that is not applicable here - a party may amend its pleading "only with the opposing party's written consent or the court's leave." Fed. Riv. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id. Under Rule 15(a), leave to amend ordinarily should be liberally granted absent undue delay, bad faith, dilatory tactics, undue prejudice in being served with the proposed pleading, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962); accord, Elma RT v. Landesmann Int'l Mktg. Corp., No. 98-CV-3662, 2000 WL 297197, at *3 (S.D.N.Y. Mar. 22, 2000). Notwithstanding the familiar and well accepted principle that leave to amend should be granted freely, if a claim contained in a proposed amended complaint would be vulnerable in the face of a Rule 12(b)(6) motion, then permitting amendment would be an act of futility that should not be sanctioned. See, e.g., Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 124 (E.D.N.Y. 1996); In re Boesky Sec. Litig., 882 F. Supp. 1371, 1379 (S.D.N.Y.1995). If, on the other hand, a "proposed claim sets forth facts and circumstances which may entitle the plaintiff to relief, then futility is not a proper basis on which to deny amendment." Saxholm, 938 F. Supp. at 124 (citing Allstate Ins. v. Administratia Asigurarilor De Stat, 875 F. Supp. 1022, 1029 (S.D.N.Y.1995)).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Rule 21 authorizes a court, "on motion of any party or of its own initiative at any stage of the action and on such terms as are just," to order the addition of parties to an action. Fed. R. Civ. P. 21; City of Syracuse v. Onondaga Cnty., 464 F.3d 297, 308 (2d Cir. 2006). That rule permits joinder "'of a person, who through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable.'" Oneida Indian Nation of N.Y. State v. Cnty. of Oneida, 199 F.R.D. 61, 72 (N.D.N.Y. 2000) (McCurn, J.) (quoting, inter alia, United States v. Hansel, 999 F. Supp. 694, 697 (N.D.N.Y. 1998) (McAvoy, J.)). A decision as to whether to permit joinder under Rule 21 is informed by the same general principles as those governing motions for leave to amend under Rule 15(a). See, e.g., Oneida Indian Nation of N.Y. State, 199 F.R.D. at 72-73.
In this case, plaintiff requests permission to amend his amended complaint to (1) clarify certain factual allegations, (2) substitute Dr. Ira Weissman for defendant Evelyn Weissman, and (3) join as a defendant Lashway, a nurse employed at Upstate at the time of the events giving rise to this action. Dkt. Nos. 73, 74, 82, 84. Plaintiff's proposed second amended complaint removes two allegations from the amended complaint, including claims that (1) defendant Weissman visited plaintiff's block on April 11, 2011; and (2) defendants falsified his medical records. Compare Dkt. No. 67 at 15, 17 with Dkt. No. 73 at 15, 17. Because these amendments do not materially alter the scope of this litigation, plaintiff's motion to amend the amended complaint in this regard is granted. Compare White v. Conn. Dep't of Children & Families, 330 F. App'x 7, 9 (2d Cir. 2009) (affirming district court's denial of the plaintiff's motion to amend where the proposed amended pleading sought to "include eleven new counts, which included additional theories of liability").
Turning now to plaintiff's request to substitute Dr. Ira Weissman for defendant Evelyn Weissman, I begin my noting that, on March 23, 2015, the court issued a decision granting plaintiff's first request for leave to amend his complaint. Dkt. No. 67. In the order, the court granted plaintiff permission to file a subsequent request, within thirty days of the date of the order, to substitute the proper party for defendant Evelyn Weissman. Id. at 8. Plaintiff's currently pending motion to substitute a party is dated April 28, 2015, six days beyond the thirty-day deadline set forth in the court's order. Dkt. No. 74. Without condoning the tardiness accompanied by plaintiff's request, I will grant the motion in light of the court's obligation to extend special solicitude to pro se litigants. Unlike plaintiff's proposal to join Lashway, discussed below, the addition of Dr. Ira Weissman does not risk unfair prejudice to defendants, who were on notice by way of the court's decision and order dated March 23, 2015, that plaintiff had named the wrong defendant with respect to his claim against defendant Evelyn Weissman.
Plaintiff's request to join Lashway as a defendant to the action requires a different result. According to plaintiff's submission, counsel for defendants informed him of Lashway's involvement in a letter dated November 14, 2014. Dkt. No. 82-2 at 1; Dkt. No. 84 at 5. The deadline for joinder of parties and amendments to pleadings expired on December 5, 2014. Dkt. No. 38. Plaintiff has not explained his failure to file a request to add Lashway as a defendant prior to the deadline for joinder. Dkt. No. 82 at 2; Dkt. No. 84 at 1; Dkt. No. 87. Since plaintiff learned of Lashway's involvement in November 2014, he has filed three motions for leave to amend the complaint or add parties, none of which included a request to add Lashway. Dkt. Nos. 42; Dkt. No. 73; Dkt. No. 74. Joining Lashway as a defendant at this juncture would require discovery to be reopened and would work unfair prejudice on the defendants, who have the right to a timely disposition of this matter. Because plaintiff has not provided the court with good cause for his delay in requesting to join Lashway, that portion of plaintiff's motion is denied. See, e.g., Reisner v. Gen. Motors Corp., 511 F. Supp. 1167, 1172 (S.D.N.Y. 1981) (denying the plaintiff's motion for leave to amend his complaint where he failed to provide any justification for waiting to file the motion until after discovery had been completed and dispositive motions had been submitted); accord, Kong Shun Ni v. Tian Yu Inc., No. 11-CV-6483, 2012 WL 5675302, at *1 (S.D.N.Y. Nov. 14, 2012).
In light of the foregoing, the clerk of the court is respectfully directed to (1) file plaintiff's proposed amended pleading (Dkt. No. 73), along with plaintiff's additional proposed amended changes (Dkt. No. 82-2; Dkt. No. 84 at 2-3), as the "second amended complaint," ("SAC"); (2) add Dr. Ira Weissman as a defendant; and (3) terminate Evelyn Weissman as a defendant because she is not named in the SAC. Plaintiff is on notice that no further amendments or joinder of parties will be permitted, absent a showing of good cause to extend the joinder and amendment deadlines, which have passed.
The second amended complaint will supersede and replace the previously filed amended complaint and will become the operative pleading in the matter.
B. The Parties' Summary Judgment Motions
Plaintiff filed a motion seeking the entry of summary judgment in his favor on December 31, 2014, before the court had ruled on his first motion for leave to amend the complaint. Dkt. No. 49. Since that submission, plaintiff's complaint has been superseded by a first amended complaint and, as discussed in Part III.A. above, his SAC. Similarly, while defendants submitted their motion for summary judgment subsequent to the filing of plaintiff's amended complaint, in light of my finding that Dr. Ira Weissman should be substituted for defendant Evelyn Weissman, defendants' motion now seeks dismissal of a non-operative pleading. Although, as noted above, the SAC does not materially alter the scope of this litigation by adding new claims or additional, unanticipated allegations, it does add a new defendant, Dr. Ira Weissman, who would not be affected by any disposition rendered by the court regarding the parties' motions at this juncture. Accordingly, I recommend the court deny both parties' motions, without prejudice, as moot. I also recommend the parties be given thirty days from the date of any order accepting this recommendation to file renewed dispositve motions addressed to the claims set forth in plaintiff's SAC.
IV. SUMMARY, ORDER, AND RECOMMENDATION
Plaintiff has requested leave to file multiple amendments to his original complaint since the commencement of this action. Although I find cause to permit him leave to amend the currently operative pleading to add and remove a limited number of allegations and join Dr. Ira Weissman as a defendant, plaintiff has not provided any justification for failing to request joinder of Lashway as a defendant until months after the deadline from amendment and joinder had expired. As for the parties' summary judgment motions, I find that the court is not in a position to rule on them in light of the intervening amendments and joinder of a new party.
Accordingly, it is hereby
ORDERED that the clerk of the court is respectfully directed to modify the court's records to change defendant Denise Maas' name on the docket to "Denise Reome"; and it is further
ORDERED that plaintiff's motions to amend the amended complaint and for joinder of parties (Dkt. Nos. 73, 74, 82, 84) are GRANTED in part and DENIED in part as follows:
(1) Plaintiff's request to amend the amended complaint (Dkt. No. 74) is GRANTED. The clerk of the court is respectfully directed to file the proposed pleading (Dkt. No. 74), along with plaintiff's proposed additional amendments (Dkt. No. 82-2; Dkt. No. 84 at 2-3), as the second amended complaint;
(2) Plaintiff's request to join Dr. Ira Weissman as a defendant in place of Evelyn Weissman is GRANTED. The clerk of the court is directed to add Dr. Ira Weissman as a defendant and terminate Evelyn Weissman as a defendant from the action in light of the fact she is not named as a defendant in the second amended complaint.
(3) Plaintiff's request to join Amber A. Lashway as a defendant in the action is DENIED; and it is hereby respectfully
RECOMMENDED that the parties' motions seeking the entry of summary judgment (Dkt. Nos. 49, 70) be DENIED, without prejudice, as moot; and it is further
RECOMMENDED that the parties be given thirty days from any decision adopting my recommendation to submit a renewed motion for summary judgment.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge
Dated: August 21, 2015
Syracuse, New York