United States District Court, S.D. Ohio, Western Division
JEREMY P. GALLANT, Plaintiff,
MR. HOLDREN, 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. (Doc. 3). This
matter is before the Court on plaintiffs motion for joinder
of defendants under Fed.R.Civ.P. 19 and 20 (Doc. 58) and
defendants' response in opposition to the motion (Doc.
filed the original complaint in this action on April 21,
2016, against defendants Mr. Cool, Mr. Holdren, Ms. Mahlman,
Anthony Cadogan, and 10 John/Jane Doe defendants. (Doc. 3).
Plaintiffs claims arise out of an alleged sewage leak that
occurred on February 13, 2016 in the J-4 unit of SOCF where
he was housed. Plaintiff alleges that defendants were
deliberately indifferent to his safety in violation of his
Eighth Amendment rights in connection with the sewage leak
and bio-hazardous contamination resulting from the leak.
filed his motion for permissive and mandatory joinder of
defendants on November 15, 2017. Plaintiff alleges that he
seeks to substitute named defendants for the John/Jane Doe
defendants listed in the original complaint. (Doc. 58).
Plaintiff identifies these individuals as Officer T. Crilow,
R. Carver, R. Koch, J. Thornhill, J. Miller, T. Tackett, S.
Jordan, E. Buckler, and M. Mathias. Plaintiff alleges that
defendant Cool identified these individuals in response to
interrogatories that plaintiff sent him on October 26, 2017,
requesting the names of all personnel assigned to the J-4
housing unit on February 13, 2016 between the hours of 12:00
a.m. and 11:59 p.m. Plaintiff alleges he received Cool's
responses on November 1, 2017, and that Cool identified the
individuals on duty as Crilow and Carver (rover) (3rd shift
on 2/12/16); Koch, Thornhill and Miller (1st shift on
2/13/16); Tackett, Jordan and Buckler (2nd shift on 2/13/16);
and Mathias and Carver (rover) (3rd shift on 2/13/16).
original defendants oppose plaintiffs request for joinder,
which they construe as a motion to amend the complaint. (Doc.
59). Defendants allege that the proposed amendment is futile
because plaintiffs claims against the newly-identified
individuals would not survive a motion to dismiss. Defendants
argue that plaintiff has made only conclusory allegations,
and these individuals are entitled to immunity from liability
as asserted in defendants' answer to the original
complaint. (See Doc. 43). Defendants also argue that
amending the complaint at this stage of the case would cause
undue delay and would prejudice defendants by forcing them to
defend against an ever-changing set of claims.
motion for joinder is properly construed as a motion to amend
the complaint under Fed.R.Civ.P. 15(a) to substitute named
defendants for the John Doe defendants. The granting or
denial of a motion to amend under Rule 15(a) is within the
discretion of the trial court, and leave to amend 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 cure deficiencies by previous amendments,
undue prejudice to the opposing party, and futility of
amendment." Brumbalough v. Camelot Care Ctrs.,
Inc., 427 F.3d 996, 1001 (6th Cir. 2005). The test for
futility is whether the amended complaint could survive a
Fed.R.Civ.P. 12(b)(6) motion to dismiss. Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir.
motion for leave to amend the complaint to substitute the
individuals identified in defendants' interrogatory
answers for the John/Jane Doe defendants should be denied.
Plaintiff did not make any factual allegations against the
John/Jane Doe defendants in the original complaint. (Doc. 3).
Nor does plaintiff allege in his motion to amend that any one
of the newly-named individuals acted, or failed to act, with
deliberate indifference to plaintiffs safety and that he was
harmed as a result. (Doc. 58). Plaintiff indicates only that
the named individuals are "responsible" for the
alleged violation of his Eighth Amendment rights, presumably
because they were on duty for some portion of the day when
the sewer leak occurred. (Id.). This is an
insufficient basis for imposing liability on these
individuals. First, it is not clear from plaintiffs
allegations whether the individuals he seeks to substitute
for the John/Jane Doe defendants were even present in the J-4
unit when the sewage leak was discovered at 4:00 a.m. on
February 13, 2016 and before the situation was resolved.
(See Doc. 3 at 8). Further, plaintiffs vague and
conclusory allegations that the named individuals are
"responsible" for violating his rights by virtue of
being on duty at some point during the day of the leak are
insufficient to support an inference that these individuals
are liable for the alleged violation of plaintiff s Eighth
Amendment rights. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (a plaintiff must "plead factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged."). Because plaintiff has not alleged any facts
which permit a reasonable inference that these individuals
violated plaintiffs Eighth Amendment rights, plaintiffs
motion for leave to add named parties to the complaint in
place of John/Jane Doe defendants should be denied on the
ground the proposed amendment would be futile.
IS THEREFORE RECOMMENDED THAT:
motion to amend the complaint (Doc. 58) be
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after
being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the
proposed findings and recommendations. This period may be
extended further by the Court on timely motion for an
extension. Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum
of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters
occurring on the record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon,
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to
another party's objections WITHIN 14