United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
Christopher Cox first filed this lawsuit in January 2016
when, proceeding pro se, he alleged, inter
alia, that Defendant Dr. Robustiano Barrera retaliated
against him for filing an Administrative Remedy Procedure
(“ARP”) in violation of the First Amendment. The
Court granted in part and denied in part a Motion to Dismiss,
ECF No. 16, and appointed pro bono counsel to represent
Plaintiff, ECF No. 29. Plaintiff now seeks leave to amend his
Complaint to clarify his retaliation claim and add a
Monell claim against Wexford Health Sources
(“Wexford”). ECF No. 38. Defendant Barrera
opposes the addition of the Monell claim against
Wexford. ECF No. 40. No. hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). For the following reasons,
Plaintiff's Motion for Leave to Amend is granted in part
and denied in part.
seeks leave to amend his Complaint to clarify his First
Amendment retaliation claim and to add allegations that
Wexford has “a practice, policy/and or procedure”
permitting staff to “withdraw orders for medically
necessary treatments and ambulatory aids without medical
evaluation” in retaliation for complaints about Wexford
staff. ECF No. 38-3 ¶ 56. Plaintiff alleges that he is
“not the only inmate who suffered this form of
retaliation, ” but does not name any other inmates who
experienced this retaliation or otherwise allege the basis
for this belief. Id. Defendant opposes only amending
the complaint to add Wexford as a Defendant and to add the
Monell claim (Count II).
to amend a pleading “shall be freely given when justice
so requires, ” Fed.R.Civ.P. 15(a); however, a motion
for leave to amend should be denied when the amendment would
be futile. Devil's Advocate, LLC v. Zurich Amer. Ins.
Co., 666 Fed.Appx. 256, 267. An amendment to a complaint
is futile when the amended complaint could not survive a
motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. A
court may not deny a party's motion to amend solely on
the basis of delay; the “delay must be accompanied by
prejudice, bad faith, or futility.” Jones v. HSBC
Bank USA, N.A., 444 Fed.Appx. 640, 643 (4th Cir. 2011)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231,
242 (4th Cir. 1999)).
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court “must accept the
factual allegations of the complaint as true and construe
them in the light most favorable to the nonmoving
party.” Rockville Cars, LLC v. City of Rockville,
Md., 891 F.3d 141, 145 (4th Cir. 2018). To overcome a
12(b)(6) motion, the “complaint must contain sufficient
factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A plaintiff must “provide sufficient
detail” to show “a more-than-conceivable chance
of success on the merits.” Upstate Forever v.
Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th
Cir. 2018) (citing Owens v. Balt. City State's
Attorneys Ofice, 767 F.3d 379, 396 (4th Cir. 2014)). The
mere recitation of “elements of a cause of action,
supported only by conclusory statements, is not sufficient to
survive a motion made pursuant to Rule 12(b)(6).”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012). Nor must the Court accept unsupported legal
allegations. Revene v. Charles Cnty. Commis., 882
F.2d 870, 873 (4th Cir. 1989). A plausibility determination
is a “context-specific inquiry” that relies on
the court's “experience and common sense.”
Iqbal, 556 U.S. at 679-80.
claim that Defendants violated his First Amendment rights
arises under 42 U.S.C. § 1983. A local government cannot
be held liable under § 1983 solely because its employee
deprives an individual of their constitutional rights.
Linnemann v. City of Aberdeen, No. MJG-12-2021, 2013
WL 3233526, at *9 (D. Md. 2013) (citing Monell v. N.Y.
City Dep't of Soc. Servs., 436 U.S. 658,
691-95 (1978)). A local government is liable for a
deprivation of constitutional rights under § 1983
“only where ‘the action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by the body's officials.” Id.
(quoting Monell, 436 U.S. at 690-91). A Plaintiff
may allege existence of a policy or custom in four ways:
(1) through an express policy, such as a written ordinance or
regulation; (2) through the decisions of a person with final
policymaking authority; (3) through an omission, such as a
failure to properly train officers, that ‘manifest[s]
deliberate indifference to the rights of citizens'; or
(4) through a practice that is so ‘persistent and
widespread' as to constitute a ‘custom or usage
with the force of law.'
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003).
It is not clear from the proposed Amended Complaint which of
these theories Plaintiff seeks to establish. Plaintiff
alleges the existence of no express written policy. Though
Plaintiff observes that Dr. Barrera is the Regional Medical
Director of Wexford, he does not allege that Barrera has
final policymaking authority; instead, he suggests that
Barrera was acting according to a policy, rather than
creating it. ECF No. 38-3 ¶ 56. Plaintiff does not
allege that Wexford failed to train its staff. To the extent
Plaintiff suggests that the practice of retaliation is so
widespread as to constitute a custom, he failed to identify
even a single additional example of the alleged use of this
practice. See Linnemann, 2013 WL 3233526, at *10
(“In most, if not virtually all, decided cases, courts
have held that a municipal custom giving rise to § 1983
liability cannot be established based on a single incident of
the unconstitutional activity charged.”). Thus,
Plaintiff has not sufficiently alleged a policy or custom and
his claim is futile.
contends that Defendant Barrera does not have standing to
challenge the addition of Wexford to the case. But courts
routinely deny leave to amend a complaint to add an
additional party, even when the opposition arises from a
separate party as it does here. See, e.g.,
Bryant v. Taylor, 244 F.Supp.3d 209, 214 (D.D.C.
2017); Jones v. Lexington Cty Detention
Ctr., 586 F.Supp.2d 444, 450 (D.S.C.
Motion for Leave to Amend, ECF No. 40, is granted in part and
denied in part without prejudice. A separate Order shall