Wilkins v. Palomino et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-03495-PAB-MEH
DARUS WILKINS,
Plaintiff,
v.
CHRIS CHAVEZ,
CARA KENNEDY,
BRENT PIERCE,
LUKE HOLLAND,
JONATHAN THIELE,
NITA HUNT,
LAUREN DILLMAN, in her individual and official capacities,
JANE GILDEN, in her individual and official capacities,
CARA KENNEDY, in her individual and official capacities,
JOHN PALOMINO, in his individual and official capacities
JANE GILDEN, in her individual and official capacities, and
WILLIAM SMITH, in his official capacity,
Defendants.
_____________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff has filed a “Motion to Add Defendant Barry Goodrich.” ECF 170. For numerous
reasons, the requested relief should be denied, which I hereby recommend.
BACKGROUND
Plaintiff is a prisoner currently housed at Colorado Territorial Correctional Facility, who
initiated this action on November 25, 2020 for events that occurred while he was a prisoner at Bent
County Correctional Facility (“BCCF”). ECF 1. On December 17, 2020, pursuant to an order from
Magistrate Judge Gordon P. Gallagher (ECF 5), Plaintiff filed an Amended Complaint. ECF 8. On
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June 24, 2021, Plaintiff filed his Second Amended Complaint. ECF 64. Finally, on September 9,
2021, 	Plaintiff 	filed 	the operative Third 	Amended 	Complaint 	(“TAC”), 	alleging 	various
constitutional and state law violations against prison officials concerning the taking of a buccal
swab for a paternity test. ECF 104. Plaintiff now seeks to file a fourth amended complaint. The
facts underlying the proposed amendment involve a brief conversation with the Warden Barry
Goodrich on July 19, 2019 and involved the paternity suit in which Plaintiff was involved. Plaintiff
allegedly asked the Warden to be allowed a phone call with his family court attorney to talk about
a mouth swab (to collect Plaintiff’s DNA) that was needed in that lawsuit. The Warden apparently
did not agree to allow Plaintiff the phone call. This is the basis for the Motion, to bring some
undefined claim against the Warden.
LEGAL STANDARDS
Rule 15 of the Federal Rules of Civil Procedures states that after the deadline for amending
a pleading as a matter of course, “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when justice so requires.”
Fed. R. Civ. P. 15(a)(2). “Refusing leave to amend is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Maloney v. City of
Pueblo, 323 F.R.D. 358, 360 (D. Colo. 2018) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365
(10th Cir. 1993)).
ANALYSIS
Numerous reasons justify denying the current Motion. First, I agree with the BCCF
Defendants’ argument that there is “no relationship between the brief encounter on July 19, 2019,
and the alleged actions taken by BCCF staff on July 25, 2019,” nor does Plaintiff allege the same.
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Opposition at 3, ECF 177. The Court cannot become Plaintiff’s general grievance department for
whenever someone in the prison does something he believes is wrong. Plaintiff does not tie the
events of July 19 with the events of July 25 whatsoever.
Second, Plaintiff has waited more than three years to bring this matter to the Court’s
attention. There is absolutely no reason any such allegation against the Warden, arising from an
event that occurred so close to the same day as the event underlying this lawsuit, could not have
been brought in one of the three complaints Plaintiff already filed. This is the definition of undue
delay.
Third, the facts alleged by Plaintiff do not support a constitutional claim that I can
discern. Thus, it would be subject to a Rule 12(b)(6) motion, and the case would be further
delayed. This establishes the futility of the proposed amendment.
CONCLUSION
Accordingly, the Court respectfully RECOMMENDS that Plaintiff’s Motion to Add
Defendant Barry Goodrich [ECF 170] be denied.1
Respectfully submitted this 29th day of September, 2022, at Denver, Colorado.
BY THE COURT:
1 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 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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Michael E. Hegarty
United States Magistrate Judge
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