Johnson v. Reyna et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00459-PAB-MEH
JABARI J. JOHNSON,
Plaintiff,
v.
REYNA,
WARGO,
KORIN,
Defendants.
_____________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff Jabari J. Johnson (“Plaintiff”) filed a motion seeking leave to file a supplemental
complaint (“Motion”). 	ECF 31. 	Defendants Reyna, Wargo, and Korin (together, “CDOC
Defendants”) have filed a response in opposition to Plaintiff’s attempt to supplement. 	ECF 34.
Despite being given extensions, Plaintiff has not filed a reply in support of his Motion by the
January 11, 2021 deadline. See ECF 43. However, the Court finds that further briefing would not
materially assist it in adjudicating the Motion. 	D.C.Colo.LCivR 7.1(d). 	The Motion has been
referred by Chief Judge Philip A. Brimmer for a recommendation. ECF 117. As set forth below,
this Court respectfully recommends denying Plaintiff’s Motion.
BACKGROUND
The Court described the factual allegations in this matter in its recommendation on the
motion to dismiss. ECF 29 at 2–3. Because a recitation of those facts is not necessary here, the
Court incorporates them herein. Id. Instead, the Court will discuss, as relevant, what has happened
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since it issued its recommendation on November 23, 2020. Plaintiff filed the current Motion that
same day. 	ECF 31. 	In compliance with the Local Rules, Plaintiff attached his proposed
supplemental complaint, underlining the material to be added. ECF 31-1. Plaintiff seeks to add
additional claims for “retaliation for speech” and violation of the Americans with Disabilities Act
(“ADA”) and add at least thirty-five additional defendants.1 	Id. 	The Court ordered expedited
briefing, ECF 33, and the CDOC Defendants filed a response opposing Plaintiff’s attempt to file a
supplemental pleading, ECF 34.
DISCUSSION
Rule 15 of the Federal Rules of Civil Procedure provides that “on motion and reasonable
notice,” the district court has discretion to permit a party to serve a supplemental pleading “setting
out any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Fed. R. Civ. P. 15(d). “Trial courts are given ‘broad discretion’ when deciding
whether to permit a party to serve a supplemental pleading.” Browne v. City of Grand Junction,
136 F. Supp. 3d 1276, 1298 (D. Colo. 2015) (citing Walker v. United Parcel Serv., Inc., 240 F.3d
1268, 1278 (10th Cir. 2001)). 	“The court should apply the same standard for exercising its
discretion under Rule 15(d) as it does for deciding a motion under Rule 15(a).” Moulton v. West,
No. 11-cv-03119-MSK-MJW, 2012 WL 2153429, at *1 (D. Colo. June 12, 2012) (quoting
Southwest Nurseries, LLC v. Florists Mut. Ins., Inc., 266 F. Supp. 2d 1253, 1256 (D. Colo. 2003)).
Therefore, “[l]eave to supplement a complaint should be given freely, based on the balancing of
several factors, including futility, delay, bad faith, dilatory motive, repeated failure to cure
1 Plaintiff asserts that he is adding thirty-five defendants. Mot. at 1. The CDOC Defendants
count thirty-six defendants to be added. Resp. at 5. The Court notes that it depends where in the
proposed supplemental complaint you count as to the number of new defendants. If you count
the defendants on pages two and three, there are thirty-seven new names; on page six, there are
thirty-six new defendants; and on pages ten and eleven, there are thirty-nine names.
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deficiencies and prejudice to the opposing party.” Rezaq v. Nalley, No. 07-cv-02483-LTB-KLM,
2010 WL 965522, at *3 (D. Colo. March 15, 2010) (citing Moore v. Reynolds, 153 F.3d 1086,
1116 (10th Cir. 1998)); see also Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177,
1186 (10th Cir. 2015).
The CDOC Defendants oppose Plaintiff’s attempt to supplement for four reasons. First,
Plaintiff’s additional allegations occurred before the filing of the Amended Complaint. Resp. at
3–4. Second, Plaintiff’s Motion would result in undue prejudice to Defendant and unreasonable
delay in this matter. 	Id. at 4. 	Third, the proposed supplemental complaint would be subject to
dismissal and thus futile. Id. at 5–6. Fourth, Plaintiff’s attempt to supplement would circumvent
the litigation-review procedures for inmate litigants. Id. at 5.
I. 	Prior Conduct
The CDOC Defendants initially challenge the timing of many of Plaintiff’s new
allegations. 	Plaintiff asserts he is seeking to add claims and defendants “after the filing of this
case.” Mot. at 1. This implies that Plaintiff’s new allegations would describe conduct after the
filing of his Complaint and is in line with Rule 15 which allows for “a supplemental pleading
setting out any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Fed. R. Civ. P. 15(d) (emphasis added).
Yet, as the CDOC Defendants note, Plaintiff has incorporated allegations that happened
prior to his Complaint into his proposed supplemental complaint. For example, Plaintiff alleges
that several of the new defendants had been notified about his alleged need for a wheelchair
beginning November 19, 2019. ECF 31-1 at 8. Because Plaintiff filed his Complaint on February
18, 2020, that allegation occurred prior to Plaintiff’s initiation of this lawsuit. 	As such, it falls
outside the purpose of Rule 15(d) in allowing supplementation of events that occurred after the
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filing of the pleading to be supplemented. Accordingly, to the extent Plaintiff includes allegations
prior to February 18, 2020, the Court respectfully recommends denying Plaintiff’s Motion. See
Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (“Where the party seeking
amendment knows or should have known of the facts upon which the proposed amendment is
based but fails to include them in the original complaint, the motion to amend is subject to denial.”)
(quoting State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984)).
II. 	Undue Prejudice and Unreasonable Delay
The CDOC Defendants contend that Plaintiff’s attempt to supplement will unduly
prejudice them and unreasonably delay this case. Resp. at 4–6. “Courts typically find prejudice
only when the amendment unfairly affects the defendants ‘in terms of preparing their defense to
the amendment.’” 	Minter v. Prime Equip. Co., 451 F.3d 1196, 1208 (10th Cir. 2006) (quoting
Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). “Most often, this occurs when the amended
claims arise out of a subject matter different from what was set forth in the complaint and raise
significant new factual issues.” Id. Plaintiff attempts to alter the subject matter of this case with
his new allegations. His original Complaint concerns alleged excessive force used on him by the
CDOC Defendants. Now, Plaintiff seeks to incorporate allegations of a denial of a wheelchair and
instances of retaliation against him for filing lawsuits. ECF 31-1 at 9. The Court finds that these
additional allegations “raise significant new factual issues” to this matter and would unduly
prejudice the CDOC Defendants in their preparation of their defense to the proposed supplemental
complaint. Minter, 451 F.3d at 1208. Consequently, the Court respectfully recommends denying
Plaintiff’s Motion on this ground.
Additionally, the Court finds unreasonable delay. The addition of at least thirty-five new
defendants—many of whom are named only by their first name—will cause delay in this case as
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service is attempted. Also, it is reasonable to anticipate that adding this many new defendants and
two new claims will cause the scope of discovery to broaden. 	Most crucially, Plaintiff’s new
allegations and attempt to add claims for First Amendment retaliation and violation of the ADA
will have the effect of making Plaintiff’s pleading a “moving target.” Id. at 1206. “Courts will
properly deny a motion to amend when it appears that the plaintiff is using Rule 15 to make the
complaint ‘a moving target,’ to ‘salvage a lost case by untimely suggestion of new theories of
recovery,’ [or] to present ‘theories seriatim’ in an effort to avoid dismissal.” Id. Particularly, the
claims for First Amendment retaliation and violation of the ADA can reasonably be categorized
as an attempt to “salvage a lost case by untimely suggest[ing] . . . new theories of recovery,” id.,
since Plaintiff only raises these claims following this Court’s recommendation granting the
Defendant Reyna’s and Korin’s motion to dismiss. 	ECF 29. 	The Court recognizes that
supplementation of a complaint will always cause delay, but in this case, for the reasons explained,
the Court finds that supplementation would cause unreasonable delay. 	Therefore, the Court
respectfully recommends denying Plaintiff’s Motion.
III. 	Futility
The CDOC Defendants argue that Plaintiff’s attempt to supplement is futile because he
does 	not 	“remedy” 	the 	“fundamental 	deficiency” 	identified 	in 	this 	Court’s 	previous
recommendation and “fails to state a claim.” Resp. at 6. They contend that Plaintiff’s allegations
do not establish the physical injury requirement of the Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e. 	Id.. 	“A motion to amend or supplement a complaint is futile if,
notwithstanding the amendment, the complaint ‘would be subject to dismissal.’” Moulton, 2013
WL 2153429, at *1 (quoting Jefferson Cty. Sch. Dist. No. r-1 v. Moody’s Investor’s Servs., Inc.,
175 F.3d 848, 859 (10th Cir. 1999)).
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Plaintiff’s new allegations include that the CDOC Defendants “maliciously and sadistically
caused wanton infliction of pain and injury when the[y] slammed the Plaintiff from the stair case
injurying [sic] the Plaintiff[’]s untreated fractured jaw.” 	ECF 31-1 at 9. 	Even with a liberal
construction, this is a conclusory statement that the Court does not need to accept as true. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Regardless, this allegation and his additional allegations do
little to build upon Plaintiff’s allegations in the original Complaint. ECF 1 at 7 (e.g., the CDOC
Defendants and Defendant Wargo “maliciously and sadistically slammed the Plaintiff from the
staircase with the intent to inflict pain and injury”). In other words, Plaintiff’s allegations do not
cure Plaintiff’s prior deficiencies. 	The Court would, again, not be able to find the injury
requirement of the PLRA satisfied. See Jones v. Cowens, No. 09-cv-01274-MSK-MJW, 2010 WL
3239286, at *2–3 (D. Colo. Aug. 12, 2010) (finding the PLRA barred plaintiff’s claims for lack of
physical injury even when plaintiff had “deep red grooves” on his wrist”). On at least that ground,
Plaintiff’s proposed supplemental complaint would be subject to dismissal; consequently, the
Court recommends denying Plaintiff’s Motion as futile. 	See E.SPIRE Commc’ns Inc. v. New
Mexico Pub. Regulation Comm’n, 392 F.3d 1204, 1211 (10th Cir. 2004) (“A court properly may
deny a motion for leave to amend as futile when the proposed amended complaint would be subject
to dismissal for any reason.”).2
IV. 	Filing Restrictions
The CDOC Defendants also urge the Court to deny Plaintiff’s attempt to supplement, as it
would “operate to subvert litigation-review procedures that apply to inmate litigants, including the
requirement that inmates pay filing fees and undergo screening of complaints for frivolousness.”
2 As the Court recommends denying Plaintiff’s attempt to supplement to add claims for First
Amendment retaliation and violation of the ADA based on unreasonable delay, the Court does
not address the futility argument concerning these claims.
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Resp. at 5 (citing 28 U.S.C. §§ 1915, 1915a). 	This argument has particular importance to this
Plaintiff. As mentioned in this Court’s recommendation on the motion to dismiss, from August
2017 to January 2020, Plaintiff filed forty prisoner complaints in this District. ECF 29 at 10 (citing
20-cv-00037-RM-MEH, ECF 3 at 1). From January to December 2020, Plaintiff has filed at least
an additional sixty prisoner complaints. 	In one of those cases, Senior District Judge Lewis T.
Babcock sanctioned Plaintiff and imposed filing restrictions due to Plaintiff’s “malicious and
abusive” filing of cases. 	See No. 19-cv-03730-LTB, ECF 10 (D. Colo. Mar. 4, 2020). 	Not
surprisingly, this District is enforcing those restrictions. See, e.g., No. 20-cv-03263-LTB, ECF 4
(D. Colo. Nov. 6, 2020) (dismissing case for failure to comply with filing restrictions). 	The
addition of at least thirty-five defendants in this matter can reasonably be construed as an attempt
to circumvent the filing restrictions imposed on Plaintiff. Although the reasons stated elsewhere
in this Recommendation are sufficient grounds to recommend denying Plaintiff’s Motion, this is
an additional reason warranting denial.
CONCLUSION
Accordingly, the Court respectfully recommends DENYING Plaintiff’s Motion [filed
November 23, 2020; ECF 31] because the proposed supplemental complaint improperly includes
allegations that should have been included in the Complaint, causes undue prejudice and
unreasonable delay, fails to state a claim, and likely attempts to circumvent filing restrictions.3
3 Be advised that all parties shall have fourteen (14) days after service hereof to serve and file
any written objections in order to obtain reconsideration by the District Judge to whom this case
is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those
findings or recommendations to which the objections are being made. The District Court need
not consider frivolous, conclusive or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
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Respectfully submitted this 25th day of January, 2021, at Denver, Colorado.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
recommendations within fourteen (14) days after being served with a copy may bar the aggrieved
party from appealing the factual findings and legal conclusions of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
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