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Dicks v. Flury

United States District Court, D. Maryland

January 16, 2018

ANDREW J. DICKS, Plaintiff,
GREG FLURY, PA, et al., Defendants.


          George L. Russell, III United States District Judge

         THIS 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 the Motion.

         I. BACKGROUND [1]

         Dicks, 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. 1).[2] 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).

         On April 1, 2014, Dicks, proceeding pro se, filed suit against the Medical Defendants and the warden of NBCI, Bobby P. Shearin, [3] 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”).[4] (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).


         A. Motion for Leave to File Amended Complaint

         There 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)).

         Here, 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.

         1. Prejudice

         The 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.[5] The Court addresses these arguments in turn.

         An 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)).

         Rule 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.

         In this 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 ...

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