Thompson-El v. Jones

• Decision Date: 01 June 1989
• Docket Number: No. 88-1968,THOMPSON-E,A,88-1968
• Citation: 876 F.2d 66
• Parties: Seanppellant, v. Jimmy JONES, Superintendent; Dick Moore, Theresa Thornburg, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 66

876 F.2d 66

13 Fed.R.Serv.3d 806

Sean THOMPSON-EL, Appellant, v. Jimmy JONES, Superintendent; Dick Moore, Theresa Thornburg,

Appellees.

No. 88-1968.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1989.

Decided June 1, 1989.

Jeffrey S. Kerr, St. Louis, Mo., for appellant.

Paul Rauschenbach, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and HEANEY, Senior Circuit Judge.

BOWMAN, Circuit Judge.

Sean Thompson-El appeals following a grant of summary judgment in favor of defendants-appellees. Thompson-El claims that the United States Magistrate ¹ erred prior to granting summary judgment by denying him leave to file a second amended complaint. We affirm.

I.

This case was initiated in October 1986 when Thompson-El filed a pro se complaint under 42 U.S.C. Sec. 1983 (1982) against officials of the Missouri Training Center for Men (MTCM) in Moberly, Missouri. The next month Thompson-El amended his complaint, adding both defendants and claims, and the claims in his original complaint subsequently were dismissed. His amended complaint alleged inter alia that individuals associated with MTCM had violated his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights. Specifically, Thompson-El claimed that he was being held in administrative segregation without having received "a report of definite misconduct, without adequate access to the courts and without a meaningful ... investigation" into the incident that precipitated his confinement in administrative segregation. Appendix of Appellant (App.) at 14. He demanded that the investigation be concluded or that he be returned to the general prison population.

On December 29, 1987, Jeffrey S. Kerr was appointed as Thompson-El's counsel. Kerr entered his appearance on Thompson-El's behalf February 4, 1988. Around February 22 the trial court entered discovery deadlines and notified the parties that trial had been set for May 23, 1988. Thompson-El moved for a continuance March 3, 1988, stating that "a prior scheduling conflict render[ed] [his] counsel unavailable for trial" on the scheduled date and requesting that the trial be re-scheduled for "a later time to be determined by the Court." App. at 34. The continuance was granted and the trial re-scheduled for May 25, 1988.

Although Thompson-El's counsel was appointed in December 1987, he did not meet with Thompson-El to discuss the case until May 3, 1988. Prior to that, discussions between counsel and Thompson-El had been limited to brief telephone calls. On May 10, two weeks before the trial was to start, Thompson-El sought leave to file a second amended complaint, in which he named four more defendants, presented at least one new claim (that the Adjustment Board's December 18, 1986 proceedings finding Thompson-El guilty of involvement in an assault were unconstitutional), and added demands for actual and punitive damages. The motion for leave to amend was denied. Thereafter, defendants' motion for summary judgment, which argued inter alia that Thompson-El's claims were moot, was granted. The trial court agreed that the claims were moot, stating that "[b]ecause the investigation ... has been completed and the plaintiff has been transferred from MTCM to another institution, his claim for injunctive relief is moot," and "there is nothing in the complaint from which a request for monetary relief may be inferred." App. at 68. Judgment in favor of defendants was entered, and Thompson-El appeals.

II.

Federal Rule of Civil Procedure 15(a) governs a party's right to amend its pleadings. The Rule provides in pertinent part that leave of court to amend a complaint "shall be freely given when justice so requires." ² As explained by the Supreme Court, absent a good reason for denial--such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of amendment--leave to amend should be granted. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Amendment of pleadings is to be liberally allowed, but the trial court's decision whether to allow amendment will be reviewed only for an abuse of discretion. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971). Having considered the circumstances surrounding the denial of Thompson-El's motion to amend, we find that there was good reason to deny the motion, and therefore cannot say that the trial court abused its discretion. ³

The policy favoring liberal allowance of amendment does not mean that the right to amend is absolute. When a considerable amount of time has passed since the filing of a complaint and the motion to amend is made on the eve of trial and will cause prejudice and further delay, courts require the movant to provide some valid reason for the belatedness of the motion. See Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983); see also Mills v. Des Arc Convalescent Home, 872 F.2d 823, 825-26 (8th Cir. April 19, 1989). Here the motion to amend was filed after the case had been pending for approximately eighteen months and just two weeks before the trial was to start. It was made almost six weeks after the date originally set for completion of discovery and two weeks after the deadline for summary judgment motions. Furthermore, grant of the motion most likely would have necessitated additional discovery and further delay. Indeed, Thompson-El moved to file discovery out of time and for a continuance the day before he filed the motion to amend, and in the motion for a continuance he indicated that to allow him adequate time to prepare for trial on the matters raised in his second amended complaint the court should set trial no earlier than August 1, 1988.

Thompson-El argues, of course, that the belatedness of his motion to amend should have been excused. He contends that it was "impossible for ... counsel to discover the need" for a second amended complaint until he and counsel met and received certain discovery materials. Brief for Appellant at 13-14. As noted above, however, counsel was appointed for Thompson-El in December 1987. The discovery materials were not requested until the first week of the following April and counsel and Thompson-El did not meet until the following May. Thompson-El provides no explanation for not requesting the discovery materials earlier, except to say the request was not late under the discovery schedule, and the failure to meet until May 3 he attributes to "counsel's scheduling conflicts and [his own] incarceration at [the Missouri State Penitentiary (MSP) ], some four (4) hours away, one way, from counsel's offices by automobile." ⁴ Brief for Appellant at 13. Suffice it to say that we find these explanations unimpressive.

Thompson-El also makes much of the fact that the complaint he was denied leave to amend, i.e., his first amended complaint, was filed pro se. He argues that the "rules favoring liberality in amending pleadings are particularly crucial" here because the pro se litigant is more prone to make errors than is the litigant represented by counsel. Brief for Appellant at 12-13. In the circumstances of this case, however, we think that point provides little excuse. Because Thompson-El had been acting pro se, counsel should have realized that deficiencies in the pleadings were likely and, once he had an opportunity to become familiar with this case, should have filed the motion to amend promptly.

Defendants contend that Thompson-El's attorney simply did not want to go to trial in late May because of certain social engagements and his late-date maneuvering was an attempt to avoid having to do so. The record provides some support for this view. For example, in the May 9 motion for continuance (filed the day before the motion to amend), Thompson-El explained that the May 9 and March 3 continuances both were made because counsel planned to be "absent for ten (10) of the last fourteen (14) days immediately preceding the trial date" in order to participate in two out-of-town weddings. App. at 53-54. ⁵ Defendants argue in essence that, rather than seeking leave to file a second amended complaint in order to press legitimate claims, Thompson-El filed the motion in order to delay trial until a time more convenient for counsel. If a motion to amend is filed for dilatory purposes, a court has good reason to deny the motion. See Foman, 371 U.S. at...