Thomas v. Spaulding
| Decision Date | 03 March 2021 |
| Docket Number | Case No. 1:19-cv-11982-NMG |
| Parties | DEREK A. THOMAS, Plaintiff, v. STEPHEN SPAULDING et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
REPORT AND RECOMMENDATION REGARDING MOTIONS FILED BY DEFENDANTS FOR A MORE DEFINITE STATEMENT, TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND INSUFFICIENT SERVICE OF PROCESS, AND FAILURE TO STATE A CLAIM AND PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
Plaintiff Derek A. Thomas ("Plaintiff" or "Thomas"), presently an inmate of FMC Devens following a conviction for production of child pornography, brings claims pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his First, Fifth, and Eighth Amendment rights against nineteen named and four John Doe Bureau of Prison ("BOP") employees. In summary Plaintiff alleges that BOP employees failed to protect him from assault and to provide him with adequate medical care and retaliated against him for filing grievances. The named defendants filed a motion for a more definite statement under Fed. R. Civ. P. 12(e) (Dkt. No. 78). Subsequently, defendants Jamie Baker, J.R. Bell, Jacqueline Carmichael, Erin Conner, Gabriel DeZayas, Tracy Joslyn, Christina Morley, Karl Norris, Corey Pointer, and Matthew Worthington (collectively, "the Foreign Defendants") filed a motion to dismiss for lack of personal jurisdiction and insufficient service pursuant to Fed. R. Civ. P. 12(b)(2) and (5) (Dkt. No. 83), followed by an amended motion to dismiss on the same grounds or, in the alternative, for a more definite statement, which amended motion was filed with leave of court (Dkt. No. 105). Defendants Stephen Spaulding, Dave Taylor, Daniel Quist, Scott Murray, Kimo Elraheb, Patricia Ruze, Kelly Fricker, and Paul Anderson (collectively, "the Massachusetts Defendants") moved to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state cognizable claims (Dkt. No. 85). For his part, Plaintiff has filed a motion for leave to file an amended complaint (Dkt. No. 95). These motions have been referred to the undersigned for report and recommendation (Dkt. Nos. 96, 105). See 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that the District Court grant Plaintiff's motion for leave to file an amended complaint; deny the defendants' motion for a more definite statement, deny the Foreign Defendants' motion and their amended motion to dismiss for lack or personal jurisdiction or insufficient service of process; and grant the Massachusetts Defendants' motion to dismiss for failure to state a claim. I further recommend that the District Court consider transferring Plaintiff's remaining claims to the Southern District of Indiana pursuant to 28 U.S.C. § 1404(a).
As an initial matter, I recommend that the District Court grant Plaintiff's motion for leave to file an amended complaint (Dkt. No. 95-1).1 The standard for judging whether to grant a motion for leave to file an amended complaint is well-settled:
A motion to amend a complaint will be treated differently depending on its timing and the context in which it is filed. A plaintiff is permitted to amend a complaint once as a matter of right prior to the filing of a responsive pleading by the defendant. Fed. R. Civ. P. 15(a). Thereafter, the permission of the court or the consent of the opposing party is required. The default rule mandates that leave to amend is to be "freely given when justice so requires," id., unless the amendment "would be futile, or reward, inter alia, undue or intended delay." Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).
Steir v. Girl Scouts of the USA, 383 F.3d 7, 11-12 (1st Cir. 2004); see also Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013). "Amendment of pleadings is largely a matter within the discretion of the district court." Guest-Tek Interactive Entm't Inc. v. Pullen, 731 F. Supp. 2d 80, 92 (D. Mass. 2010) (citing Farkas v. Texas Instruments, Inc., 429 F.2d 849, 851 (1st Cir. 1970)).
A party is entitled as of right to file an amended complaint if the party does so within 21 days after service of "a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1)(B). Generally, in other circumstances, a party may amend the complaint only with the opposing party's written consent or with leave of court. Fed. R. Civ. P. 15(1)(2). Plaintiff is not entitled to file an amended complaint as of right in the instant action because he did not do so within 21 days of the date on which the defendants filed their Fed. R. Civ. P. 12(e) motion (Dkt. No. 78). The defendants oppose Plaintiff's motion for leave to amend his complaint on grounds of futility (Dkt. No. 97).
Thomas states that the purpose of his proposed amendments is to cure errors and omissions and he has provided a table of contents describing the amendments (Dkt. No. 95). His motion was by no measure unduly delayed, nor would allowing the motion prejudice the defendants. While Thomas did not file within Rule 15(a)(1)(B)'s 21-day protective window, he only missed that mark by some 17 days notwithstanding that he is incarcerated. He sought leave to amend his complaint primarily to respond to some of the deficiencies identified in thedefendants' motions to dismiss. The case remains in the very early stages. None of the defendants has answered the initial complaint, the court has not set a deadline for the filing of motions for leave to amend pleadings, and the parties have not conducted any discovery. See Ramirez v. DeCoster, No. 2:11-cv-00294-JAW, 2012 WL 2367179, at *6-7 (D. Me. June 21, 2012) (). Plaintiff's proposed amendments do not change or add significantly to the factual allegations in his initial complaint (Dkt. No. 95). For this reason, accepting the amended complaint as the operative pleading will not interfere with the District Court's ability to consider the defendants' pending motions to dismiss - in their present form - on their merits. See Santiago v. WHM Carib, LLC, 126 F. Supp. 3d 211, 214 (D.P.R. 2015) ().
Finally, granting Plaintiff's motion to file an amended complaint would not interfere with judicial economy and efficiency. See EMC Corp. v. Pure Storage, Inc., 310 F.R.D. 194, 202-03 (D. Mass. 2015) (). "If leave to amend is sought before discovery is complete and neither party has moved for summary judgment, the accuracy of the 'futility' label is gauged by reference to the liberal criteria of Federal Rule of Civil Procedure 12(b)(6)." Hatch v. Dep't for Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir. 2001) (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). If the District Court grants Plaintiff's motion for leave to file an amended complaint, there willbe no need to consider the defendants' futility argument separately from consideration of the Massachusetts Defendants' pending Rule 12(b)(6) motion because the futility argument would be evaluated by the same standard that applies to their argument that the complaint fails to state a claim upon which relief can be granted. Thus, for example, in the Ramirez case, observing that "[t]he Defendants' futility arguments fuse with the motion to dismiss standard[,]" the court granted the plaintiff's motion for leave to file a second amended complaint over the defendants' opposition and ruled on the defendants' pending motions to dismiss in light of the allegations in the second amended complaint. See Ramirez, 2012 WL 2367179, at *7 (citing Glassman, 90 F.3d at 623; Gagliano-McFarland v. Giri Cmty. Drive LLC, No. 1:10-cv-490-GZS, 2011 WL 1883191, at * 1-2 (D. Me. May 16, 2011), aff'd, 2011 WL 2472807, at *1 (D. Me. June 22, 2011)). In the instant case, the District Court should follow the course adopted by the Ramirez court.
For the foregoing reasons, I recommend that the court grant Plaintiff's Motion for Leave to File an Amended Complaint. Below, I set out relevant factual allegations and make recommendations regarding the defendants' pending motions to dismiss relying on the contents of the proposed amended complaint.
Plaintiff was transferred to USP Terre Haute in September 2017 due to safety concerns (Amended Compl. ¶¶ 27, 32). Inmate Gary Long, Jr. ("Long") was assigned to Plaintiff's cell on October 9, 2017 (Amended Compl. ¶ 36). Long, who was known by staff to be a violent and psychologically disturbed inmate, beat Plaintiff unconscious on the first night they shared a cell(Amended Compl. ¶¶ 36-37).2 On October 10, 2017, Plaintiff notified the staff that he was being assaulted and asked to be transferred (Amended Compl. ¶ 40). Conner and Joslyn ignored Plaintiff's plea for help (Amended Compl. ¶¶ 41, 43). On October 16 and November 3, 2017, Plaintiff again notified USP Terre Haute staff that Long had assaulted him; his requests not to be housed in a cell with Long were again denied or ignored (Amended Compl. ¶¶ 44, 48). On November 3, 2017, Plaintiff and Long were transferred from USP Terre Haute to the special housing unit ("SHU") in FCI Terre Haute (Amended Compl. ¶ 48). On November 7, 2017, Carmichael failed to respond to Plaintiff's request for...
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