Free Order on Motion to Amend/Correct - District Court of Connecticut - Connecticut

Case 3:03-cv-00407-JCH

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

ANGEL CABALLERO, JR.

: : v. : : COMMISSIONER JOHN J. ARMSTRONG, et al.:

PRISONER Case No. 3:03CV407(JCH)

RULING AND ORDER Pending are plaintiff's motion for leave to file a third amended complaint and motion for extension of time to respond to defendants' motion to dismiss. plaintiff's motions are denied. I. Background Plaintiff commenced this action by complaint filed on March 7, 2003. He named as defendants Commissioner John Armstrong, For the reasons that follow,

Deputy Commissioner Jack Tokarz, Warden Larry Myers, Dr. Patrick Hynes and Deputy Commissioner Peter Matos. amended complaint on May 9, 2003. Plaintiff filed an

The first amended complaint

included the same defendants but withdrew all claims against these defendants in their official capacities. On August 26, 2003, plaintiff filed a motion for leave to file a second amended complaint. The proposed second amended

complaint, dated August 21, 2003, added two defendants, Thomas

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Coates and Michael Lajoie. individual capacities only.

All defendants were named in their The court granted leave to file the On October 22,

second amended complaint on October 10, 2003.

2003, the court received plaintiff's motion to withdraw his motion for leave to file the proposed second amended complaint. The court denied this motion and informed plaintiff that if he wished to withdraw the claims in the second amended complaint he should file a motion to withdraw without prejudice all claims against defendants Coates and Lajoie. motion to withdraw. On November 19, 2003, the defendants filed a motion to dismiss the second amended complaint. In response, plaintiff has Plaintiff has not filed a

filed a motion for leave to file a third amended complaint and a motion seeking an extension of time to respond to the motion to dismiss. Plaintiff argues that the motion to dismiss should be

denied as moot in light of his third amended complaint. II. Discussion Rule 15(a), Fed. R. Civ. P., provides that permission to amend a complaint "shall be freely given when justice so requires." Underlying this rule is an assumption that the

amended complaint will clarify or amplify the original cause of action. See Klos v. Haskell, 835 F. Supp. 710, 715 n.3 (W.D.N.Y. In determining whether

1993), aff'd, 48 F.3d 81 (2d Cir. 1995).

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to grant leave to amend, the court considers such factors as undue delay, bad faith, dilatory motive, undue prejudice and futility of the amendment. 182 (1962). The operative complaint in this case, the second amended complaint dated August 21, 2003, names seven defendants and challenges the requirement that inmates at Northern Correctional Institution exercise in full restraints and the fact that inmates at Northern Correctional Institution are "double-celled" in the Administrative Segregation Program. The proposed third amended See Forman v. Davis, 371 U.S. 178,

complaint adds eighteen defendants and new claims regarding the revised recreation policy instituted on May 6, 2003, inadequate clothing for outdoor recreation, inadequate medical care, excessive force against inmates, failure to document injuries by completing incident reports and taking photographs, failure to protect inmates from harm by cell mates and to protect plaintiff from a January 2003 assault by his cell mate, failure to provide mental health treatment from April 2002 through November 2003, failure to place plaintiff on single cell status and falsification of reports. Plaintiff was aware of many of these claims at the time he filed his first amended complaint and was aware of all of the claims at the time he filed his second amended complaint, yet he

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did not choose to assert those claim in the first three complaints. As indicated above, an amended complaint is intended

to clarify existing claims, not add new claims to an existing action. If the court were to permit this amendment, the case

would become more burdensome on the court. In addition, at plaintiff's November 7, 2003 deposition, he told defendants' attorney that the only claim he intended to pursue in this case was that he was required to recreate in full restraints. He specifically informed counsel that he no longer

intended to pursue the other claims included in the second amended complaint. Based on this response, counsel did not Defendants argue that if

question plaintiff on any other claims.

plaintiff were permitted to file the third amended complaint, they would be prejudiced in that they would have to schedule a second deposition. The court agrees.

Further, the court would be required to delay this action to effect service on the newly added defendants. For these reasons,

plaintiff's motion for leave to file a third amended complaint is denied. If plaintiff wishes to pursue the new claims, he may do

so by filing another lawsuit. Plaintiff has filed a motion for extension of time to respond to defendants' motions to dismiss. He argues that the

motions are moot because they are directed to the second amended

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complaint.

In light of this ruling denying leave to file a third

amended complaint, the second amended complaint remains the operative complaint. Thus, defendants' motions are not moot.

Plaintiff's motion for extension of time to respond to defendants' motion to dismiss is granted to the extent that plaintiff is directed to file his response to the motions to dismiss on or before January 7, 2003. III. Conclusion Plaintiff's Motion for Leave to File Amended Complaint [doc. #29] is DENIED. Plaintiff's Motion for Extension of Time to File

Response to Defendants' Motion to Dismiss [doc. #38] is GRANTED to the extent that plaintiff shall file his response to both motions to dismiss on or before January 7, 2003. SO ORDERED. Entered this 18th day of December, 2003, at Bridgeport, Connecticut. _______/s/__________________ HOLLY B. FITZSIMMONS UNITED STATES MAGISTRATE JUDGE

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