United States District Court, D. Maryland
ANDREW J. DICKS, Plaintiff,
GREG FLURY, PA, et al., Defendants.
L. Russell, III United States District Judge
MATTER is before the Court on Plaintiff Andrew J. Dicks'
Motion for Leave to File Second Amendment to Complaint (ECF
No. 111). Defendants Greg Flury, PA and Colin Ottey, MD (the
“Medical Defendants”) oppose the Motion. The
Motion is ripe for disposition. No. hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons
that follow, the Court will grant in part and deny in part
an inmate at North Branch Correctional Institution
(“NBCI”), alleges that Defendant Flury assaulted
him on October 9, 2012 while at a medical appointment to
treat an injury to his right knee. (Compl. at 2-4, 6, ECF No.
Dicks states that Flury punched him in the chest “with
a closed fist, ” and then “grabbed [him] with
both hands and shoved him backward into the examining table,
” which caused Dicks to fall on the floor and hit his
head on the wall. (Id. at 4). Flury's assault,
Dicks avers, exacerbated the existing injury to his right
knee. (Id. at 6). Dicks further pleads that at a
medical appointment on October 15, 2012, Dr. Ottey prescribed
him oral medication, but refused to treat the injuries he
sustained as a result of Flury's assault. (Id.
at 5). At the time of these events, Wexford Health Sources,
Inc. (“Wexford”), a private contractor that
provides medical services to inmates at Maryland prisons,
employed the Medical Defendants. (2d Am. Compl. ¶¶
9, 15, ECF No. 111-1).
April 1, 2014, Dicks, proceeding pro se, filed suit against
the Medical Defendants and the warden of NBCI, Bobby P.
Shearin,  alleging violations of his civil rights
under 42 U.S.C. § 1983 (2012) for cruel and unusual
punishment and denial of medical care (the “Original
Complaint”). (ECF No. 1). Dicks, still proceeding pro
se, filed an amended complaint on May 12, 2014 (the
“Supplement”). (ECF No. 7). Dicks, now represented by
counsel, moves for leave to file a Second Amendment to the
Original Complaint. The Medical Defendants filed their
Opposition on April 21, 2017. (ECF No. 118). Dicks filed a
Reply on May 9, 2017. (ECF No. 125).
Motion for Leave to File Amended Complaint
is a “federal policy in favor of resolving cases on the
merits instead of disposing of them on technicalities.”
Mayfield v. Nat'l Ass'n for Stock Car Auto
Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012)
(quoting Matrix Capital Mgmt. Fund, LP v. BearingPoint,
Inc., 576 F.3d 172, 193 (4th Cir. 2009)). Consonant with
this policy, Rule 15(a)(2) provides that the Court should
“freely give leave” to file an amended complaint
“when justice so requires.” The United States
Court of Appeals for the Fourth Circuit has
“interpreted Rule 15(a) to provide that ‘leave to
amend a pleading should be denied only when the amendment
would be prejudicial to the opposing party, there has been
bad faith on the part of the moving party, or the amendment
would have been futile.'” Laber v. Harvey,
438 F.3d 404, 426 (4th Cir. 2006) (quoting Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).
in his Second Amendment, Dicks seeks to add medical
negligence claims against the Medical Defendants, add Wexford
as a defendant, and bring respondeat superior, negligent
hiring and training, and § 1983 deliberate indifference
to medical needs claims against Wexford. The Medical
Defendants argue that Dicks' Second Amendment is both
prejudicial and futile, and that therefore, the Court should
deny Dicks leave to amend. The Court begins by considering
whether granting Dicks leave to file the Second Amendment
would be prejudicial.
Medical Defendants assert that incorporating the Original
Complaint and Supplement by reference into the Second
Amendment creates confusion, unfairness, and inconvenience.
The Medical Defendants also contend that Dicks' delay in
amending his complaint creates undue prejudice. The Court
addresses these arguments in turn.
amended pleading typically supersedes the original pleading,
giving the original pleading no effect. Young v. City of
Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (quoting
In re Crysen/Montenay Energy Co., 226 F.3d 160, 162
(2d Cir. 2000)). This principle does not, however, apply if
the amended complaint “specifically refers to and
incorporates by reference the earlier pleading.”
McManus v. Williams, 519 F.Supp.2d 1, 5 (D.D.C.
2007) (citing El-Hadad v. Embassy of the U.A.E., 69
F.Supp.2d 69, 71 n.1 (D.D.C. 1999)).
10(c) provides that “[a] statement in a pleading may be
adopted by reference . . . in any other pleading or
motion.” Incorporation by reference under Rule 10(c)
must, however, “be direct and explicit” so that
the responding party may “ascertain the nature and
extent of the incorporation.” Hinton v. Trans
Union, LLC, 654 F.Supp.2d 440, 446 (E.D.Va. 2009),
aff'd, 382 F.App'x 256 (4th Cir. 2010)
(quoting Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1326 (3d ed.
2004)). This requirement is meant to “ensure[ ]
fairness” and avoid incorporations that “may
prove confusing and inconvenient.” Id. (Wright
& Miller, supra, § 1326). Indeed,
“the risk of such confusion and inconvenience is
particularly high where . . . a party seeks wholesale
incorporation in an amended pleading of a superseded version
of that same pleading.” Id. at 447. As a
result, “wholesale incorporations-particularly those
that seek to incorporate superseded versions of a
complaint-must be examined with special care.”
Id. The Court “has broad discretion, based on
the factual and procedural history of a particular case, to
accept or to reject attempts at wholesale incorporation of
superseded pleadings.” Id. at n.16.
case, the Second Amendment “refers to and incorporates
by reference all allegations in [the] initial
Complaint” and “the First Amendment to
Complaint.” (2d Am. Compl. ¶¶ 7, 14, 19, 25,
34). The Second Amendment, however, does not seek to alter
the allegations or claims in the Original Complaint. Rather,
it merely adds counts against the Medical Defendants, adds
Wexford as a defendant, and brings counts against Wexford.
(Compare Compl., with 2d Am. Compl.).
Additionally, considering that Dicks commenced this action
through hand-written pleadings as a pro se litigant, the
Court takes a more permissive view of Dicks' Second
Amendment. See McManus, 519 F.Supp.2d at 5
(permitting pro se plaintiff's wholesale incorporation of
the original complaint by reference into amended complaint).
And, as a practical matter, Dicks cannot file the traditional
amended complaint of a represented litigant because his
Original Complaint and Supplement, which the Medical
Defendants have answered, are hand-written. Because the
Second Amendment does not alter the contents of the Original
Complaint and Supplement, and the Medical ...