Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 84-1199 -- J. Patrick Endsley, Magistrate.
Bauer, Chief Judge, Cummings and Coffey, Circuit Judges.
Sidney Jones is an inmate in the Indiana State Reformatory at Pendleton, Indiana, serving a 20-year sentence for attempted robbery. Jones filed a complaint against a number of prison officials and employees under 42 U.S.C. § 1983, alleging they failed to protect him from an assault by other inmates. The parties consented to a bench trial before a United States magistrate, and the magistrate dismissed the petitioner's complaint on the merits after trial. Jones appeals, and we affirm.*fn1
Jones was incarcerated at the Indiana State Reformatory on January 13, 1984, when he was transferred there from the Westville Correctional Center. Prior to his incarceration at the Westville facility, Jones had been an inmate at the Indiana State Prison in Michigan City, Indiana. Jones was placed in the disciplinary segregation section of the Administrative Segregation Unit of the Reformatory because of his involvement in a riot at Westville.
Jones testified that soon after his incarceration at the Reformatory, he learned that a contract had been placed on his life by inmates John Cole and Enoch Smith, both members of a prison gang known as the "Black Dragons."*fn2 Smith testified that on January 26, 1984, Jones sent him a note asking for his assistance in removing the contract on his life. Smith returned the note stating that he could not remove the contract and that Jones had to die. Jones further testified that Cole and inmate Melvin Love then began yelling at him, specifically, that when he came out of his cell, he was a dead man.
In response to these written and verbal threats, Jones claims that he gave separate notes to Sergeant Hampton and Officers Swain and Likens, and a letter to Counselor Hamelman sometime before the recreation period on January 27, advising them that he "feared for his life," and requesting that he not be released from his cell for recreation. Nonetheless, he was released for recreation, was assaulted, and suffered six stab wounds.
The magistrate determined that the assault occurred as follows:
"At approximately 5:11 o'clock p.m. on January 27, 1984, the plaintiff was released from his cell for recreation (rec) and treatment (shower). . . . The institution's log sheets shows that inmates Williams, Trotter, Montgomery, S. Jones [plaintiff] and Bell were all released for recreation at the same time. . . .
At about 6:50 o'clock p.m., plaintiff approached the cell house gate which was manned by Correctional Officer Swain and requested that he be let out of the unit. Officer Swain told him he did not have the authority to let him out or open the gate. . . . The plaintiff was attacked by inmates Trotter and Montgomery without warning within a few minutes after he left the gate at a point ten to twelve (10-12) feet from the gate. . . . Trotter stabbed Jones six times in the neck and cheek with a handmade 'ice pick' within 30 to 40 seconds of the onset of the attack. Jones obtained the ice pick during the attack and threw it through the bars to Officer Swain who had summoned assistance in accordance with unit procedures. Officer Swain was Gate Officer and had neither a key to open the gate or a weapon of any kind. Reinforcement officers, including Sergeant Hampton, from other units responded to Swain's summon for assistance and when enough reinforcements arrived to control the situation they entered the unit, removed Jones, and took him to the institution hospital for examination and treatment by the staff physician."
On November 28, 1984, Jones filed a pro se complaint in the United States District Court for the Southern District of Indiana against the State of Indiana, the Indiana Department of Corrections, Indiana State Reformatory Superintendent Norman Owens, and five employees of the Reformatory: Counselor Morris Hamelman, Sergeant Michael Hampton, Sergeant Kenneth Ray, Officer Thomas Likens, and Officer James Swain. At the outset, the district court dismissed the State of Indiana, the Indiana Department of Corrections, Sergeant Ray, and Superintendent Owens as defendants sua sponte pursuant to 28 U.S.C. § 1915(d).*fn3 Jones' pro se complaint alleged only that Counselor Hamelman, Sergeant Hampton, Officer Likens, and Officer Swain ignored his notes and oral pleas for protection and, as a result, he was attacked by Trotter and Montgomery.*fn4 Jones further alleged that the officers failed to take immediate and appropriate action to protect him after the assault was initiated.
After this action was transferred for trial to the United States Magistrate, Jones filed a petition for a writ of habeas corpus ad testificandum requesting the court to allow him to be present at trial. The magistrate denied the motion on April 3, 1987. On April 29, 1987, Jones filed a motion for leave to amend his complaint and for joinder of additional parties. The magistrate denied this motion ruling that Jones had failed to tender an amended complaint with his motion. On May 5, 1987, Jones filed a similar motion and tendered an amended complaint. On June 1, 1987, the magistrate denied this motion because the tendered complaint failed to frame the issues before the court more accurately than the original complaint.
At the conclusion of the trial the magistrate dismissed all the defendants finding they were not liable to plaintiff Jones under § 1983. The magistrate found that: (1) "The unit's security procedures were reasonably necessary to insure the safety of the inmates, staff, and the institution in general"; (2) "None of the defendants, individually or collectively, were deliberately indifferent to plaintiff's needs. . . ."; (3) "None of the defendants, individually or collectively, acted in reckless disregard for plaintiff's physical safety"; and, (4) "The defendants Swain and Hampton acted in a reasonable and prudent manner to the sudden and apparently unprovoked attack upon plaintiff and that such action was in conformance with the then existing institutional procedures." Furthermore, the magistrate specifically found that Jones' assertion that he informed the defendants in writing of the threats on his life was "not credible and [was] not supported by other credible evidence or documents."
On appeal Jones argues: (1) the magistrate erred in denying Jones leave to amend his complaint; (2) the magistrate erred in refusing to allow the testimony of a witness to show the modus operandi of defendant Swain to aid and abet criminal acts; (3) the magistrate erred in denying Jones leave to present the testimony of a fellow inmate as an expert witness; (4) Jones was denied the right of access to the courts and counsel; and (5) the magistrate ignored evidence adduced at trial and, consequently, the magistrate's decision was clearly erroneous.
II. THE AMENDED COMPLAINT
Jones contends the magistrate erred in denying his motion for leave to amend his complaint arguing that "the proposed amended complaint merely pled the occurrence with greater specificity and [attempted] to add additional defendants who were also directly responsible for the occurrence."*fn5 We note that the grant or denial of a motion to amend a complaint is committed to the sound discretion of the trial court. Thus, we will overturn the magistrate's denial of Jones' motion to amend only if there has been an abuse of discretion. Goulding v. Feinglass, 811 F.2d 1099, 1103 (7th Cir. 1987). Fed. R. Civ. P. 15(a) states that leave to file an amended complaint "shall be freely given when justice so requires." The Supreme Court has explained the meaning of "freely given" as used in Rule 15(a) by stating:
"In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. --the leave sought should, as the rules require, be 'freely given'."
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222(1962) (emphasis added). Here, the magistrate denied Jones' motion for leave to amend the complaint because Jones was "belatedly . . . [attempting] to enlarge the issues herein." We agree with the finding of the magistrate since Jones attempted to include in his proposed amended complaint additional issues concerning prison records, prison administration and policy, and the processing and assignment of inmates. The pro se complaint merely contained allegations that the defendants had received notes and verbal pleas that Jones' life was in danger, and that they had reacted improperly to the assault when it commenced. It should also be pointed out that Jones did not attempt to amend his complaint until twenty-nine months after the filing of the pro se complaint--less than three months before trial was scheduled to commence, after cross-motions for summary judgment had been filed, and after the pre-trial conference had taken place. We are cognizant of the unique difficulties encountered by pro se inmate litigants and are well aware of a court's obligation to liberally construe pro se complaints. See Sizemore v. Williford, 829 F.2d 608, 609-10 (7th Cir. 1987). However, because of Jones' extreme tardiness in attempting to amend the ...