United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE
civil rights action is now before the Court on
Plaintiff's pro se motion to issue service and motion to
amend. Upon careful review, the undersigned finds that
Plaintiff's motions are not well-taken.
Background and Facts
(“McDougald”), Inmate Number A548-527, brings
this case alleging various violations of his 1st and 8th
Amendment rights under the U.S. Constitution, relating to a
pepper spray (“use of force”) incident occurring
during his incarceration at Ohio's Southern Ohio
Correctional Institution (“SOCF”), a maximum
security prison located at Lucasville, Ohio.
contends he was the subject of excessive force (pepper spray)
and was denied medical attention by corrections officials
following a pepper spray incident on December 27, 2016 while
at SOCF. (Doc. 5, Complaint, PageID 30-31). In his amended
complaint, McDougald named defendants Warden Ron Erdos,
Deputy Warden William Cool, Lt. Brad Dyer, C/O Ryan Andre,
and John Doe Nurse. (Doc. 5). Following the Court's
screening process (whether the complaint, as amended, or any
portion of it, should be dismissed because it is frivolous,
malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is
immune from such relief. See Prison Litigation Reform Act of
1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805,
28 U.S.C. § 1915A(b)) -- McDougald's claims brought
against Defendants in their ‘official capacity'
were dismissed. (Doc. 6, Order and Report and Recommendation;
Doc. 16, Order). McDougald's claims against Warden Erdos
and Deputy Warden Cool were also dismissed under the theory
of respondeat superior. (Doc. 6, Order and Report and
Recommendation; Doc. 16, Order).
before the Court is Plaintiff's motion to issue service,
summons and complaint on Nurse Malt who was identified in the
complaint as John Doe Nurse (Doc. 19). Also before the Court
is Plaintiff's motion to amend / correct the complaint.
Plaintiff's motions (Docs. 19, 31) are not
Rule 15(a)(1), a party may amend the complaint once as a
matter of course before being served with a responsive
pleading.” Broyles v. Correctional Medical Serv.,
Inc., 2009 WL 3154241 (6th Cir.2009); see Pertuso v.
Ford Motor Credit Co., 233 F.3d 417, 421 (6th Cir.2000).
The Sixth Circuit has described this Rule as giving
plaintiffs an “absolute right to amend.”
Pertuso, 233 F.3d at 421.
where a responsive pleading has been filed, “a party
may amend its pleading only with the opposing party's
written consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). Although the “court should freely give leave
when justice so requires, ” Fed.R.Civ.P. 15(a)(2),
provides that leave to amend may be denied for: (1) undue
delay, (2) lack of notice to the opposing party, (3) bad
faith, (4) repeated failure to cure in prior amendments, (5)
prejudice to the opposing party, or (6) futility of the
amendments. Foman v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227, 9 L.Ed.2d 222 (1962); Perkins v. American
Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th
Cir.2001). “Amendment of a complaint is futile when the
proposed amendment would not permit the complaint to survive
a motion to dismiss.” Miller v. Calhoun Cnty.,
408 F.3d 803, 817 (6th Cir.2005). To survive a motion to
dismiss, a complaint must contain sufficient factual
allegations to state a claim that is plausible. Ashcroft
v. Iqbal, 556 U.S. 662, (2009); Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570).
permitting Plaintiff to amend his complaint to name Nurse
Malt in place of the John Doe would be futile, cause undue
delay and prejudice the Defendants. Plaintiff does not have
any viable federal claims against Nurse Malt. The discovery
deadline passed on November 11, 2017 and there is a pending
motion for summary judgment. Furthermore, plaintiff's
claims against Nurse Malt should also dismissed on the
alternative ground that plaintiff failed to identify her by
her real name and effect service of process upon her within
120 days from the filing of the original complaint as
required by Fed.R.Civ.P. 4(m).
also seeks to amend his complaint and /or summary judgment to
correct a clerical error. Specifically, Plaintiff seeks to
change the amount of time it took for Defendant Dyer to
arrive at Plaintiff's cell from 15 minutes to 50 minutes.
Plaintiff states he became aware of this mistake after
receiving Defendants discovery responses. In the interest of
judicial economy, the undersigned finds that Plaintiff's
proposed amendments are unnecessary. Plaintiff may submit
such evidence in response to Defendant's motion for
summary judgment and/or in support of his motion for summary
these reasons, it is therefore RECOMMENDED
that Plaintiff's motions ...