Elrod v. Swanson

• Decision Date: 19 March 2007
• Docket Number: No. 05-3114-JAR.,No. 05-3127-JAR.,05-3114-JAR.,05-3127-JAR.
• Citation: 478 F.Supp.2d 1252
• Parties: Anthony Wayne ELROD, Plaintiff, v. R.D. SWANSON, et al., Defendants. Anthony Wayne Elrod, Plaintiff, v. Mark X. Sedillo, et al., Defendants.
• Court: U.S. District Court — District of Kansas

478 F.Supp.2d 1252

Anthony Wayne ELROD, Plaintiff, v. R.D. SWANSON, et al., Defendants.

Anthony Wayne Elrod, Plaintiff, v. Mark X. Sedillo, et al., Defendants.

No. 05-3114-JAR.

No. 05-3127-JAR.

United States District Court, D. Kansas.

March 19, 2007.

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Anthony Wayne Elrod, Coleman II, pro se.

Connie R. Dearmond, Office of United States Attorney, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

ROBINSON, District Judge.

This matter comes before the Court on defendants' Motion to Dismiss (Doc. 67), which was converted to a Motion for Summary Judgment pursuant to the Court's Order (Doc. 88). The Court also considers several other motions and objections filed by plaintiff over the course of this litigation. (Does. 8, 19, 36, 58.) Finally, the Court considers plaintiffs Motion for Leave to Amend Complaints (Doc. 91). Plaintiff, a pro se litigant, filed a Complaint on March 7, 2005 in Case No. 05-3114-JAR against R.D. Swanson, a correctional counselor at United States Penitentiary ("USP") Leavenworth, as well as a number of other officials and personnel at the Bureau of Prisons ("BOP") and at USP Leavenworth, alleging that his constitutional rights were violated when he was exposed to environmental tobacco smoke ("ETS") during his incarceration at USP Leavenworth. Then on March 17, 2005, plaintiff filed a Complaint in Case No. 05-3127-JAR claiming that personnel at USP Leavenworth violated his First, Fifth, Sixth, and Fourteenth Amendment right to access the courts. On April 18, 2005, these two cases were consolidated for this Court's review. For the reasons set forth below, the Court denies plaintiffs request to amend his Complaints, grants summary judgment in favor of defendants, and dismisses this consolidated action.

I. Plaintiff's Motion to Amend Complaints

Fed.R.Civ.P. 15(a) governs the amendment of pleadings. Because of the advanced stage of the litigation in this case, the second sentence of Rule 15(a) applies, which contemplates that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."¹ Thus, motions to amend are matters of discretion for the trial court.² The Tenth Circuit has offered guidance by listing factors for courts to consider, such as futility of the amendment, a showing of undue delay, undue prejudice to the non-moving party, or bad faith of the moving party.³

Here, the Court denies plaintiff s motion because his attempt to amend the Complaint at this late stage in the proceeding amounts to undue delay. "[A] district court acts within the bounds of its discretion when it denies leave to amend for `untimeliness' or `undue delay.'"⁴ In this case, plaintiff filed both Complaints in 2005, and defendants currently have a pending dispositive motion on file with the Court. Plaintiff offers no reason for the delay in moving to amend other than his assertion that he needs to clarify his claims because he believes defendants misunderstand his allegations. Because plaintiffs request is untimely, the Court finds no reason to allow him to amend his Complaints.

Even if plaintiffs request was timely, the motion for leave to amend fails to comply with the local rules. D. Kan. R. 15.1 requires that "a motion to amend .. . that may not be filed as a matter of right shall set forth a concise statement of the amendment or leave sought to be allowed with the proposed pleading attached."⁵ Here, plaintiff did not attach a proposed pleading so the Court cannot determine how plaintiff is attempting to amend his Complaints. However, based on plaintiffs descriptions of the proposed amendments as stated in his motion, the Court finds that such amendments would be futile. Plaintiff states that he "seeks leave to amend so that he can make his two claims clear to the defendants."⁶ He further proclaims that he "has done so in his response (paragraphs 1 and 17) but he would like to do so in an amended complaint to clarify any misunderstanding as to what the claim is in each case."⁷ Plaintiff emphasizes that he "does not wish to add any claims to the complaints."⁸

A prisoner is required to "plead his claims with `a short plain statement ... showing that [he] is entitled to relief,' in compliance with Fed.R.Civ.P. 8(a)(2)...."⁹ The Court finds that in this case plaintiff has adequately plead his claims for violations of constitutional rights in both Case No. 05-3114-JAR and Case No. 05-3127-JAR. Further, plaintiff has provided the additional clarification of these claims in his response.¹⁰ Therefore, the Court finds there is no need for plaintiff to amend his Complaints in this case, as such an amendment would be futile. Accordingly, his motion to amend is denied.

II. Plaintiff's Motions and Objections

On April 22, 2005, a "Motion for Order" was filed by plaintiff through his nextfriend, Yorie von Kahl.¹¹ Plaintiff filed this motion while he was housed at USP Leavenworth, and he requests the Court intervene and investigate plaintiffs medical condition. Plaintiff contends that he was severely beaten by officers at USP Leavenworth and that he was not receiving appropriate medical attention. Plaintiff requests the Court to order the United States Marshals (1) to enter USP Leavenworth (2) to inspect plaintiff, plaintiff's medical records, relevant witnesses, and any files relating to his allegations, and (3) to protect plaintiff from present and future harm.

On June 13, 2005, plaintiff filed an "Emergency Motion for an Immediate Evidentiary Hearing, Judicial Intervention, Protective Order, Judicial Notice, Request for a Subpoena and Request for an Injunction" (hereinafter "Emergency Motion").¹² In this motion, plaintiff alleges that on April 14, 2005, he was severely beaten by "named Defendants and other BOP Correctional Officers." On June 17, 2005, United States Magistrate Judge O'Hara ordered defendants to file a response to plaintiff's motion concurrent with the filing of their Answer or other responsive pleading.¹³ Additionally, Judge O'Hara ordered defendants to "secure and maintain any surveillance tapes which may be relevant to this case."¹⁴ Defendants have informed the Court that a copy of the surveillance video has been secured. On August 17, 2005, the Court received notice that plaintiff had been transferred from USP Leavenworth to another facility.

Because plaintiff's requests in his "Motion for Order" and "Emergency Motion" are for injunctive relief and plaintiff is currently incarcerated at another facility, the Court finds that plaintiff's claims in these motions are moot. The Supreme Court has held that "those who seek to invoke the power of the federal courts must allege an actual case or controversy."¹⁵ This requirement requires courts to decline jurisdiction where "the award of any requested relief would be moot — i.e. where the controversy is no longer live and ongoing?"¹⁶ A claim should be "deemed moot unless a proper judicial resolution settles some dispute which affects the behavior of the defendant toward the plaintiff."¹⁷ "A case may become moot because events subsequent to the filing of the case have resolved the dispute and, as a result, there is no longer an actual controversy between adverse litigants."¹⁸

Here, the injunctive relief sought by plaintiff would provide no remedy to the conditions alleged in the Complaints because plaintiff is no longer incarcerated at USP Leavenworth, and there is no indication that he is to be returned to that location. Therefore, because the Court cannot grant the requested relief to plaintiff, his motions must be denied.¹⁹

Plaintiff has also filed objections to two orders issued by Judge O'Hara. Plaintiff first objected to the July 6, 2005 Order granting defendants an additional sixty days in which to answer or otherwise respond to plaintiffs Complaint.²⁰ Plaintiff later objected to the August 3, 2005 Order denying plaintiffs motion to compel process and service on unserved defendants.²¹

Fed.R.Civ.P. 72(b) allows a party to provide specific, written objections to the magistrate judge's order. The rule states that "[t]he district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions."²² With respect to a magistrate judge's order relating to nondispositive pretrial matters, the district court does not conduct a de novo review; rather, the court applies a more deferential standard by which the moving party must show that the magistrate judge's order is "clearly erroneous or contrary to law."²³ "The clearly erroneous standard applies to factual findings, and `requires that the reviewing court affirm unless it "on the entire evidence is left with the definite and firm conviction that a mistake has been committed."'"²⁴

The July 6, 2005 Order granting defendants an additional sixty days in which to answer or otherwise respond to plaintiffs Complaint addressed nondispositive pretrial matters in this case. After reviewing Judge O'Hara's order, as well as the parties' submissions, the Court finds that Judge O'Hara's decision is not clearly erroneous or contrary to law. Therefore, the Court overrules and denies plaintiffs objection to this Order.

On the other hand, the August 3, 2005 Order denying plaintiffs motion to compel process and service on unserved defendants was a dispositive order in that the Court refused to effect service on Michael K. Nalley and effectively extinguished plaintiffs claims against this defendant. "When the magistrate judge's order denying a motion to amend, however, effectively removes a defense or claim from the case, it may well be a dispositive ruling that the district court should review de novo."²⁵ After reviewing plaintiffs Complaint in Case No. 05-3127, the Court finds that plaintiff properly named Michael K. Nalley as a defendant in...