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Talleyy v. Fitzgerald

United States District Court, S.D. Illinois

November 4, 2019

DURWYN TALLEY, Plaintiff,
v.
ZACHARY FITZGERALD, JACQUELINE LASHBROOK, and BRIAN MINER, Defendants.

          MEMORANDUM AND ORDER

          GILBERT C. SISON, UNITED STATES MAGISTRATE JUDGE.

         Pending 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.

         On 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 5).[1] 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.[2] In Count 5, Talley claims his cell in Menard lacked adequate ventilation.

         On May 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.

         On May 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).

         The 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).

         On 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 the motion.

         Pursuant 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).

         The 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).

         Under Rule 15(c)(1), an amendment to a pleading relates back to the date of the original pleading when one of three things occurs:

         (A) the law that provides the applicable statute of limitations allows relation back;

         (B) the 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 amendment:

(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 ...

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