LaMarche v . Bell, et a l . CV-04-069-SM 06/07/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Eric Michael LaMarche, S r .
v. Civil N o . 04-cv-69-SM
Paul Bell, et al. 1
O R D E R
Plaintiff Eric Michael LaMarche, Sr., filed his complaint in
this action pro se and in forma pauperis. Now represented by
counsel, he moves to amend the complaint. The Defendants, New
Hampshire State Prison corrections officials, filed an objection.
After preliminarily reviewing the pro se complaint, this
Court issued a report and recommendation (“R&R”) finding that
Plaintiff sufficiently alleged Eighth Amendment claims against
Defendants Bell, Dugre, Fedele, Hopwood and Karavas in their
individual capacities premised on their alleged failure to
protect him from harm from another inmate and their excessive use
of force. Document N o . 1 9 .
In response to the R&R, Plaintiff filed a motion to “Amend
Court Report,” which was entered on the court’s docket as an
1 The State of New Hampshire was terminated as a defendant in this action on April 1 3 , 2005. objection to the R&R. See Document N o . 2 3 . Plaintiff sought to
correct factual errors in the R&R and did not raise any new
claims or identify new parties. Id. The R&R was approved by the
court (Barbadoro, J.) on September 3 0 , 2004. Document N o . 2 4 .
On November 1 6 , 2004, the Defendants filed a motion for
summary judgment arguing that judgment should be entered in their
favor because the Plaintiff failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a). Document N o . 3 0 . Judge Barbadoro denied the
motion without prejudice ruling that:
A factual dispute exists in this case as to whether plaintiff’s mental condition is sufficiently severe to support his equitable tolling argument. Counsel must be appointed before this issue can be resolved. The motion is denied without prejudice. Defendant may renew its motion no earlier than 30 days after counsel has filed an appearance.
Document N o . 4 1 .
Michael J. Sheehan, Esquire, filed an appearance on
Plaintiff’s behalf on March 3 , 2005. Document N o . 4 4 . On April
1 2 , 2005, the Defendants renewed their motion for summary
judgment. Document N o . 4 7 . Thereafter, the parties filed a
Joint Discovery Plan on April 1 5 , 2005 in which the parties
agreed that Plaintiff’s deadline to move to amend his pleading
2 was May 1 5 , 2005. Document N o . 4 8 . The Joint Discovery Plan was
approved and adopted as a pretrial scheduling order by the court
(McAuliffe, C.J.) on April 1 8 , 2005. Id.
Plaintiff filed the instant motion to amend the complaint on
May 1 3 , 2005. Document N o . 4 9 . Plaintiff argues that although
this Court was able to decipher his constitutional claims arising
from events that occurred on October 1 4 , 2003, his initial pro se
pleading consists of a series of handwritten and typed documents
discussing many unrelated events including the events of May 2 9 ,
2002 involving Corrections Officer Mark Jordan, whom Plaintiff
now seeks to add as a defendant. Plaintiff asserts that his
significant mental health issues rendered him unable to “separate
the wheat of a couple significant constitutional claims from the
chaff of his various difficulties at the prison.” Mot. to Amend
at 2. 2 Plaintiff’s counsel identified the potential claim
against Jordan after reviewing the documents that comprise the
complaint and speaking with the Plaintiff at length.
2 The issue of whether plaintiff’s mental condition is sufficiently severe to support his argument for equitable tolling of the Prison Litigation Reform Act’s exhaustion requirement remained unresolved when Defendants renewed their motion for summary judgment. Plaintiff asserts that his mental health issues will be addressed in his objection to the motion for summary judgment.
3 Under Fed. R. Civ. P. 15(a), a plaintiff may move to amend
the complaint once as a matter of course before the defendant
files a responsive pleading. After a responsive pleading has
been filed, however, the plaintiff must obtain either the adverse
party’s consent or leave of court to amend the complaint. Rule
15(a) provides, as a default rule, that “leave shall be freely
given when justice so requires.” Fed. R. Civ. P. 15(a). Leave
to amend need not be granted where the amendment “would be
futile, or reward, inter alia, undue or intended delay.” Steir
v . Girl Scouts of the USA, 383 F.3d 7 , 12 (1st Cir. 2004).
In deciding whether to exercise its discretion to grant
leave to amend, the court must consider the timing and context in
which the motion to amend is filed. Id. at 11-12. Cut-off dates
for the filing of amendments are typically included in the
court’s scheduling order. Id. at 1 2 . When a scheduling order
has been entered, “the liberal default rule is replaced by the
more demanding ‘good cause’ standard of Fed. R. Civ. P. 16(b).”
Id. (citing O’Connell v . Hyatt Hotels of P.R., 357 F.3d at 1 5 2 ,
154-155 (1st Cir. 2004)). And where a motion for summary
judgment has been timely filed, “a plaintiff is required to show
‘substantial and convincing evidence’ to justify a belated
4 attempt to amend a complaint.” Id. (citing Resolution Trust
Corp. v . Gold, 30 F.3d 2 5 1 , 253 (1st Cir. 1994)). A motion to
amend is most susceptible to denial where the timing of the
motion “prejudices the opposing party by ‘requiring a re-opening
of discovery with additional costs, a significant postponement of
the trial, and a likely major alteration in trial tactics and
strategy . . . .’” Id. (quoting Acosta-Mestre v . Hilton Int’l of
P.R., Inc., 156 F.3d 4 9 , 52 (1st Cir. 1998)).
In this case, Plaintiff argues that he should be granted
leave to amend the complaint because significant mental health
issues rendered him unable to properly identify his claims when
he was proceeding in this matter pro s e . Plaintiff argues that
this case is still in its early stages since no discovery has
been conducted and the trial date is still one year away.
Plaintiff further argues that the Defendants will suffer no
prejudice if the motion to amend is granted.
In their objection, Defendants argue that Plaintiff’s motion
should be denied because Plaintiff seeks to add a claim that
should have been raised in Plaintiff’s objection to this Court’s
R&R. Therefore, Defendants argue, Plaintiff’s claim against
Jordan should be deemed waived. This argument cannot carry the
5 day here. The Plaintiff was proceeding pro se at the time this
Court’s R&R was approved, and Judge Barbadoro subsequently found
that a fact issue exists pertaining to the severity of
Plaintiff’s mental condition that warrants the appointment of
counsel for Plaintiff. Defendants do not contend that the
proposed amendment, submitted after the appointment of counsel,
is futile. Application of the waiver rule under these
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LaMarche v . Bell, et a l . CV-04-069-SM 06/07/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Eric Michael LaMarche, S r .
v. Civil N o . 04-cv-69-SM
Paul Bell, et al. 1
O R D E R
Plaintiff Eric Michael LaMarche, Sr., filed his complaint in
this action pro se and in forma pauperis. Now represented by
counsel, he moves to amend the complaint. The Defendants, New
Hampshire State Prison corrections officials, filed an objection.
After preliminarily reviewing the pro se complaint, this
Court issued a report and recommendation (“R&R”) finding that
Plaintiff sufficiently alleged Eighth Amendment claims against
Defendants Bell, Dugre, Fedele, Hopwood and Karavas in their
individual capacities premised on their alleged failure to
protect him from harm from another inmate and their excessive use
of force. Document N o . 1 9 .
In response to the R&R, Plaintiff filed a motion to “Amend
Court Report,” which was entered on the court’s docket as an
1 The State of New Hampshire was terminated as a defendant in this action on April 1 3 , 2005. objection to the R&R. See Document N o . 2 3 . Plaintiff sought to
correct factual errors in the R&R and did not raise any new
claims or identify new parties. Id. The R&R was approved by the
court (Barbadoro, J.) on September 3 0 , 2004. Document N o . 2 4 .
On November 1 6 , 2004, the Defendants filed a motion for
summary judgment arguing that judgment should be entered in their
favor because the Plaintiff failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a). Document N o . 3 0 . Judge Barbadoro denied the
motion without prejudice ruling that:
A factual dispute exists in this case as to whether plaintiff’s mental condition is sufficiently severe to support his equitable tolling argument. Counsel must be appointed before this issue can be resolved. The motion is denied without prejudice. Defendant may renew its motion no earlier than 30 days after counsel has filed an appearance.
Document N o . 4 1 .
Michael J. Sheehan, Esquire, filed an appearance on
Plaintiff’s behalf on March 3 , 2005. Document N o . 4 4 . On April
1 2 , 2005, the Defendants renewed their motion for summary
judgment. Document N o . 4 7 . Thereafter, the parties filed a
Joint Discovery Plan on April 1 5 , 2005 in which the parties
agreed that Plaintiff’s deadline to move to amend his pleading
2 was May 1 5 , 2005. Document N o . 4 8 . The Joint Discovery Plan was
approved and adopted as a pretrial scheduling order by the court
(McAuliffe, C.J.) on April 1 8 , 2005. Id.
Plaintiff filed the instant motion to amend the complaint on
May 1 3 , 2005. Document N o . 4 9 . Plaintiff argues that although
this Court was able to decipher his constitutional claims arising
from events that occurred on October 1 4 , 2003, his initial pro se
pleading consists of a series of handwritten and typed documents
discussing many unrelated events including the events of May 2 9 ,
2002 involving Corrections Officer Mark Jordan, whom Plaintiff
now seeks to add as a defendant. Plaintiff asserts that his
significant mental health issues rendered him unable to “separate
the wheat of a couple significant constitutional claims from the
chaff of his various difficulties at the prison.” Mot. to Amend
at 2. 2 Plaintiff’s counsel identified the potential claim
against Jordan after reviewing the documents that comprise the
complaint and speaking with the Plaintiff at length.
2 The issue of whether plaintiff’s mental condition is sufficiently severe to support his argument for equitable tolling of the Prison Litigation Reform Act’s exhaustion requirement remained unresolved when Defendants renewed their motion for summary judgment. Plaintiff asserts that his mental health issues will be addressed in his objection to the motion for summary judgment.
3 Under Fed. R. Civ. P. 15(a), a plaintiff may move to amend
the complaint once as a matter of course before the defendant
files a responsive pleading. After a responsive pleading has
been filed, however, the plaintiff must obtain either the adverse
party’s consent or leave of court to amend the complaint. Rule
15(a) provides, as a default rule, that “leave shall be freely
given when justice so requires.” Fed. R. Civ. P. 15(a). Leave
to amend need not be granted where the amendment “would be
futile, or reward, inter alia, undue or intended delay.” Steir
v . Girl Scouts of the USA, 383 F.3d 7 , 12 (1st Cir. 2004).
In deciding whether to exercise its discretion to grant
leave to amend, the court must consider the timing and context in
which the motion to amend is filed. Id. at 11-12. Cut-off dates
for the filing of amendments are typically included in the
court’s scheduling order. Id. at 1 2 . When a scheduling order
has been entered, “the liberal default rule is replaced by the
more demanding ‘good cause’ standard of Fed. R. Civ. P. 16(b).”
Id. (citing O’Connell v . Hyatt Hotels of P.R., 357 F.3d at 1 5 2 ,
154-155 (1st Cir. 2004)). And where a motion for summary
judgment has been timely filed, “a plaintiff is required to show
‘substantial and convincing evidence’ to justify a belated
4 attempt to amend a complaint.” Id. (citing Resolution Trust
Corp. v . Gold, 30 F.3d 2 5 1 , 253 (1st Cir. 1994)). A motion to
amend is most susceptible to denial where the timing of the
motion “prejudices the opposing party by ‘requiring a re-opening
of discovery with additional costs, a significant postponement of
the trial, and a likely major alteration in trial tactics and
strategy . . . .’” Id. (quoting Acosta-Mestre v . Hilton Int’l of
P.R., Inc., 156 F.3d 4 9 , 52 (1st Cir. 1998)).
In this case, Plaintiff argues that he should be granted
leave to amend the complaint because significant mental health
issues rendered him unable to properly identify his claims when
he was proceeding in this matter pro s e . Plaintiff argues that
this case is still in its early stages since no discovery has
been conducted and the trial date is still one year away.
Plaintiff further argues that the Defendants will suffer no
prejudice if the motion to amend is granted.
In their objection, Defendants argue that Plaintiff’s motion
should be denied because Plaintiff seeks to add a claim that
should have been raised in Plaintiff’s objection to this Court’s
R&R. Therefore, Defendants argue, Plaintiff’s claim against
Jordan should be deemed waived. This argument cannot carry the
5 day here. The Plaintiff was proceeding pro se at the time this
Court’s R&R was approved, and Judge Barbadoro subsequently found
that a fact issue exists pertaining to the severity of
Plaintiff’s mental condition that warrants the appointment of
counsel for Plaintiff. Defendants do not contend that the
proposed amendment, submitted after the appointment of counsel,
is futile. Application of the waiver rule under these
circumstances would be contrary to the interests of justice.
Defendants argue alternatively that the filing of their
motion for summary judgment requires the Court to consider
Plaintiff’s motion under the substantial evidence standard
discussed in Steir, supra, and in Watson v . Deaconess Waltham
Hosp., 298 F.3d 1 0 2 , 109 (1st Cir. 2002). The Court finds that
the use of that standard would be inappropriate in the context of
this case. Unlike the motions contemplated by the First Circuit
rule, Plaintiff’s motion is timely because it was filed before
the cut-off date for amendments set in the court’s pretrial
scheduling order. Therefore, the liberal default rule for
amendments under Fed. R. Civ. P. 15(a) has not been displaced.
See Steir, 383 F.3d at 1 2 . Moreover, granting the motion to
amend would not delay this case by necessitating a re-opening of
6 the discovery deadline, require a postponement of the trial date,
or cause a major alteration in the Defendants’ trial tactics or
strategy. The Court finds that granting the motion to amend
would not cause the Defendants to suffer any prejudice.
The Defendants further argue that Judge Barbadoro’s 30-day
waiting period before Defendants could renew their motion for
summary judgment provided the Plaintiff sufficient time to file a
motion to amend. The pretrial scheduling order makes clear,
however, that the intent of the 30-day period was to prevent the
Defendants from prematurely moving for summary judgment, not to
bind the Plaintiff.
For the reasons set forth above, the Court finds that
justice requires that the Plaintiff be granted leave to file the
proposed amended complaint. Accordingly, the motion to amend the
complaint (document n o . 49) is granted.
SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: June 7 , 2005
cc: Michael J. Sheehan, Esq. Nancy J. Smith, Esq.