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Gallant v. Cadogan

United States District Court, S.D. Ohio, Western Division

August 28, 2017

JEREMY P. GALLANT, Plaintiff,
v.
ANTHONY CADOGAN, et al., Defendants.

          BARRETT, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF), brings this pro se action under 42 U.S.C. § 1983 alleging violations of his civil rights under the First and Eighth Amendments to the United States Constitution. (Doc. 3). This matter is before the Court on (1) plaintiffs "Motion for Leave to Proceed" and for "Authorization and Acceptance of Filings" (Doc. 36), and (2) plaintiffs "Motion for Joinder of Parties-Defendants" (Doc. 37), defendants' response in opposition (Doc. 42), and plaintiffs reply in support of the motion (Doc. 43).

         II. Background

         Plaintiff was granted leave to proceed in forma pauperis in this matter on May 3, 2016 (Doc. 2). After performing a. sua sponte review of the complaint and the supporting allegations set forth in plaintiffs motion for injunctive relief (Docs. 3, 4), the undersigned issued an Order and Report and Recommendation on May 3, 2016, recommending that certain claims and defendants be dismissed and ordering that plaintiff could proceed on the following claims:

[Plaintiffs] first cause of action to the extent that plaintiff has alleged a claim against defendant [Dr. Faisal] Ahmed based on the failure to treat a broken bone and infection in plaintiffs right hand, as well as a claim against defendant Ahmed and unidentified "John/Jane Doe" defendants for assaulting plaintiff during a medical examination on March 9, 2015; his second cause of action to the extent that plaintiff has alleged claims against a "John/Jane Doe" defendant for committing a retaliatory act by exposing plaintiff to a harmful chemical substance on July 2, 2015, and against "John/Jane Doe" defendants who allegedly refused to provide medical treatment for injuries suffered in that incident; and his fourth cause of action for alleged "U.S. mail tamperings and obstructions." which has been brought against defendants [Mr.] Cool, [Lieutenant] Frazie, [Captain] Whittman, [Mr.] Mead, [Mr.] Satterfield, and "other unidentified state officials."

(Doc. 5). The District Judge adopted the Report and Recommendation by Order dated August 18, 2017. (Doc. 51).

         In his motion for leave to proceed and for authorization and acceptance of filings, plaintiff requests leave to amend the complaint under Fed.R.Civ.P. 15(a)(2) to correct deficiencies in the original complaint. (Doc. 36). In his motion for joinder of party defendants, plaintiff requests leave to add defendants to the complaint under Fed.R.Civ.P. 20(a)(2).[1] (Doc. 37). Plaintiff states that he intends to substitute named defendants for the John Doe defendants listed in the original complaint. Plaintiff also asserts that his proposed amended complaint alleges additional violations of his constitutional rights that are closely related to those asserted in the original pleadings. (Id.). He contends that the assertions in the proposed amendment "involve events, omissions and retaliatory transgressions" committed by individuals not listed as defendants in the original complaint.

         Plaintiff submitted a proposed amended complaint on February 22, 2017. (Doc. 39). Plaintiff names as defendants in the proposed amended complaint several defendants who were named in the original complaint and who were not dismissed by the Court. These are defendants Ahmed, Cool, Whitman, Frazie, Mead, and Satterfield. Plaintiff also names as defendants in the proposed amended complaint Cadogan, Clagg, Mahlman, Wilson, and Hunyadi, all of whom were previously dismissed from the lawsuit. (See Docs. 5, 51). Plaintiff also seeks to bring a new cause of action against Officer Burton, who was not named as a defendant in the original complaint, and a John Doe defendant in connection with an incident that occurred on December 12, 2015. (Id. at 6-8).

         Defendants oppose plaintiffs motion for leave to amend and to add parties to the complaint. (Doc. 42). Defendants contend that the individuals named as defendants in the proposed amended complaint appear to be the same individuals plaintiff named as defendants in the original complaint. Defendants allege that plaintiff has not brought new claims against these individuals but instead has submitted a "repackaged and rolled-out" version of the original complaint, which the Court has already addressed. (Id. at 6). Defendants argue that the proposed amendment would be futile and plaintiff should not be granted leave to add as defendants Cadogan, Clagg, Mahlman, Wilson, and Hunyadi, all of whom have been dismissed from the lawsuit.[2]

         In reply, plaintiff alleges that the amended complaint raises additional constitutional assertions that are intended to correct deficiencies in the original complaint. (Doc. 43). Plaintiff further argues that defendants have not addressed his motion to join parties but instead have focused only on whether the Court should grant leave to amend the complaint under Rule 15. Plaintiff asserts that his motion for joinder is brought under Fed.R.Civ.P. 19, "Required Joinder of Parties, " and he does not address Fed.R.Civ.P. 20, "Permissive Joinder of Parties, " the only Rule referenced in his motion for joinder.[3] Plaintiff argues that he should be granted leave to join parties under Rule 19 because the individuals he seeks to add as defendants are closely involved in the case and in the acts of retaliation alleged in the original complaint.

         The Court finds that plaintiffs motion for joinder of parties is not properly brought under either Rule 19 or Rule 20. Plaintiff does not seek to hold defendants liable jointly, severally, or in the alternative so as to make Rule 20 applicable. Further, plaintiff has not shown that any of the criteria for joinder under Rule 19 apply. Rather, because plaintiff seeks to add allegations and new parties to the complaint, plaintiffs motions before the Court are properly construed together as a request for leave to amend the complaint under Fed.R.Civ.P. 15(a).

         Rule 15(a) provides that a complaint may be amended once as a matter of course within 21 days of service of responsive pleadings. Fed.R.Civ.P. 15(a)(1)(B). If plaintiff wishes to amend the complaint after the 21 day period has expired, he must obtain consent of the opposing parties or leave of the Court. Fed.R.Civ.P. 15(a)(2). The grant or denial of a motion to amend under Fed.R.Civ.P. 15(a) is within the discretion of the trial court, and leave to amend a complaint should be liberally granted. Foman v. Davis,371 U.S. 178, 182 (1962). "In deciding whether to grant a motion to amend, courts should consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to ...


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