United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
GILBERT C. SISON, UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's motion for leave to file
instanter a second amended complaint (Docs. 142,
149, 151, 153). Defendants oppose the motion (Docs. 147, 152,
155). Based on the following, the Court
GRANTS the motion.
August 29, 2014, Durwyn Talley, an inmate in the Illinois
Department of Corrections currently housed at Pontiac
Correctional Center (“Pontiac”), filed this
pro se civil rights suit pursuant to 42 U.S.C.
§ 1983 alleging Defendants violated his First and Eighth
Amendment rights (Doc. 1). Following a threshold review of
the complaint pursuant to 28 U.S.C. § 1915A (Doc. 2),
severance of this case from 14-cv-948-MJR-SCW (Doc. 4), and
the dismissal of several unknown John Doe defendants (Doc.
4), Talley was allowed to proceed on one court of denial of
access to the courts in violation of the First Amendment
against Defendants Fitzgerald, Lashbrook, and Miner (Count 3)
and one claim for injunctive relief regarding conditions of
confinement against Defendant Hutchinson, the warden of
Menard Correctional Center (“Menard”) (Count
In Count 3, Talley claimed that Defendants failed to provide
him with copies of orders relating to an appeal. As a result,
the appeal was dismissed. In Count 5, Talley claims his cell in
Menard lacked adequate ventilation.
24, 2018, District Judge Rosenstengel entered a Memorandum
and Order adopting a Report and Recommendation granting in
part and denying in part Defendants' motion for summary
judgment (Doc. 96). Specifically, Judge Rosenstengel allowed
Talley to proceed as to Count 3 against Defendants
Fitzgerald, Lashbrook and Miner only as it relates to the
failure to provide Talley with the Central District of
Illinois's May 12, 2014 Order. Id. Judge
Rosenstengel also dismissed Count 5 as moot. Id.
26, 2018, Magistrate Judge Wilkerson assigned attorney
Maureen O. Bryan for Talley (Doc. 97). Thereafter, Magistrate
Judge Wilkerson held a status conference (Doc. 106). During
the status conference, defendants' counsel indicated that
he was in the process of sending discovery to Talley's
attorneys. As such, Magistrate Judge Wilkerson set the matter
for another status conference on July 11, 2018. On July 7,
2018, Magistrate Judge Wilkerson held a status conference,
set the matter for another status conference on August 13,
2018 and re-opened discovery through September 4, 2018 (Doc.
109). At the next status conference, the parties discussed
discovery and the need to move the deadlines (Doc. 117).
Thereafter, on August 21, 2018, upon consent of the parties,
the matter was transferred to Magistrate Judge Wilkerson for
final disposition (Doc. 122).
next day, Talley, by and through appointed counsel, filed a
motion for leave to file instanter a First Amended
Complaint (Doc. 123). On August 27, 2018, Magistrate Judge
Wilkerson granted the motion for leave to file
instanter First Amended Complaint, noting Defendants
did not object to the motion (Doc. 126). The First Amended
Complaint was filed on September 14, 2018 against Fitzgerald,
Lashbrook and Miner for interfering with his access to courts
during Talley's detention at Menard (Doc. 128).
Specifically, Talley alleges that Defendants failed to
provide him with a May 12, 2014 Order from the District Court
for the Central District of Illinois, which resulted in the
dismissal of his appeal in Talley v. Friel, et
al., No. 11-CV-1368. Ultimately, Magistrate Judge
Wilkerson amended the Scheduling and Discovery Order
extending discovery to March 1, 2019 and the dispositive
motion deadline to April 5, 2019. On January 9, 2019, this
matter was reassigned to the undersigned for final
disposition (Doc. 137).
April 10, 2019, Plaintiff, by and through appointed counsel,
moved to file instanter a Second Amended Complaint
(Doc. 142). Specifically, Talley seeks leave to add Jennifer
Clendenin, a paralegal at Menard, as a named defendant.
Talley argues that Clendenin was only recently identified in
written discovery responses provided in December 2018; that
Defendants initial disclosures listed 17 Menard employees as
potential Doe defendants, including mailroom employees and
three office assistants and that Clendenin was not identified
as a potential Doe defendant, nor did Defendants provide
Talley with any documents/information which would assist
Talley in identifying her. Further, Talley contends that the
Defendants other written discovery responses failed to
disclose her. Defendants oppose the motion arguing that the
amendment is futile as the claims are barred by the statute
of limitations and there is not sufficient tolling to add
Clendenin at this time. Defendants also oppose the motion
arguing that the addition of a new defendant would prejudice
defendants. On May 13, 2019, the undersigned held a hearing
on the motion, took the matter under advisement and allowed
the parties additional time to brief equitable tolling (Doc.
150). The parties filed the briefs (Docs. 151, 152, 153,
155). As the motion is ripe, the Court turns to the merits of
to Federal Rule of Civil Procedure 15(a)(1), “[a] party
may amend its pleadings once as a matter of course . . . if
the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.” Fed. R. Civ. Proc. 15(a).
As noted previously, Plaintiff was permitted to file a first
amended complaint (Doc. 128) and defendants filed an answer
to the first amended complaint (Doc. 132). As such, Plaintiff
must now seek to amend his complaint pursuant to Rule 15
(a)(2), which allows a party to “amend its pleading
only with the opposing party's written consent or the
court's leave.” Fed. R. Civ. Proc. 15(a)(2).
decision to grant a plaintiff leave to amend a compliant
under Rule 15(a)(2) is within the sound discretion of the
Court. See Pugh v. Tribune Co., 521 F.3d 686, 698
(7th Cir. 2007); Orix Credit Alliance v. Taylor Mach.
Works, 125 F.3d 468, 480 (7th Cir. 1997). Rule 15(a)(2)
states that amendments should be freely granted “when
justice so requires.” Fed. R. Civ. Proc. 15 (a)(2).
However, the Supreme Court has noted that leave should not be
freely given where certain circumstances exist. See
Forman v. Davis, 371 U.S. 178, 182 (1962). Such
circumstances include: “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 . . . [and the] futility of
the amendment[.]” Forman, 371 U.S. at 182;
Barry Aviation, Inc. v. Land O'Lakes Municipal
Airport Com'n, 377 F.3d 682, 687 (7th Cir. 2004).
See also Guise v. BMW Mortgage, LLC, 377 F.3d 795,
801 (7th Cir. 2004)(noting that leave to amend may be denied
on the grounds of “undue delay, bad faith, dilatory
motive, prejudice, or futility.”); Knapp v.
Whitaker, 757 F.2d 827, 849 (7th Cir. 1985)(noting that
the court should consider prejudice to the non-moving party
in determining whether to grant a motion to amend).
Rule 15(c)(1), an amendment to a pleading relates back to the
date of the original pleading when one of three things
law that provides the applicable statute of limitations
allows relation back;
amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out-or attempted to
be set out-in the original pleading; or (C) the amendment
changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if,
within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the