United States District Court, S.D. Ohio, Western Division
JEREMY P. GALLANT, Plaintiff,
ANTHONY CADOGAN, et al., Defendants.
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
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).
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).
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). (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.
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).
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.
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. 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.
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).
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 ...