Gonzalez-Madera v. Administracion de Correccion et al, No. 3:2008cv01260 - Document 61 (D.P.R. 2010)

Court Description: OPINION AND ORDER granting re 57 MOTION for Leave to File Document filed by Ludfrey Gonzalez-Madera Signed by Chief Mag. Judge Justo Arenas on 1/20/2010.(nydi)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 LUDFREY GONZÃ LEZ-MADERA, 5 6 Plaintiff 7 v. 8 NARCISO DE JESÃ S, et al., 9 CIVIL 08-1260 (JA) Defendant 10 11 OPINION AND ORDER 12 13 14 This matter is before the court on motion for leave to amend the pleadings filed by plaintiff, Ludfrey GonzÃ¡lez-Madera, on December 10, 2009. (Docket No. 15 16 57.) The defendants, Administration of Corrections ( AOC ), Narciso de JesÃºs- 17 Cardona, Edward GarcÃa-Soto, Freddy Alicea-GonzÃ¡lez and Jorge Silvestrini-Ruiz 18 filed a motion in opposition on December 14, 2009. (Docket No. 59.) For the 19 reasons set forth below, plaintiff s motion is hereby GRANTED. 20 21 I. PROCEDURAL BACKGROUND 22 On February 29, 2008, plaintiff, proceeding pro-se, filed a complaint under 23 42 U.S.C. § 1983. (Docket No. 1.) In the complaint, the AOC, the Correctional 24 Health Services Inc., ABC Insurance for Correctional Health Services and John 25 26 Doe were named as the defendants. (Id. at 1.) Plaintiff alleged that his 27 constitutional rights were violated by the defendants because he was deprived of 28 medical and health services. (Id. at 1, ¶ 3.) As a result of the defendants actions 1 CIVIL 08-1260 (JA) 2 2 3 plaintiff seeks compensation of $300,000 as well as punitive damages. (Id. at 2, 4 5 ¶ 8.) 6 On August 15, 2008, through his legal representation, plaintiff filed an 7 amended complaint to add defendants that were not named in the original 8 complaint. (Docket No. 11.) Plaintiff s amended complaint now included as 9 10 defendants Sergeant GarcÃa, Sergeant Cosme, Sergeant Jusino, Correctional 11 Officer VÃ¡zquez, Correctional Officer Alicea, Correctional Officer RodrÃguez, 12 Correctional Officer Figueroa, Warden Narciso de JesÃºs, Captain Silvestrini, and 13 Lieutenant Lucas. (Id. at 2, ¶ 5.) Plaintiff alleges that the defendants in violation 14 15 of the Civil Rights Act of 1871 through their acts and omissions denied him 16 medical and health services that he was entitled to under the Eight and Fourteenth 17 Amendment of the United States Constitution. (Id. at 3, ¶ 8.) 18 On February 17, 2009, plaintiff s amended complaint was answered by the 19 20 defendants. (Docket No. 40.) On March 4, 2009, the court issued a Scheduling 21 Order setting the discovery deadline for July 30, 2009, and the dispositve motion 22 deadline for August 1, 2009. 23 conference was scheduled to take place on December 30, 2009, and jury trial was 24 (Docket No. 43.) Meanwhile, the pre-trial set for January 11, 2010. (Docket No. 46.) On August 12, 2009, plaintiff filed 25 26 a motion requesting an extension of time to complete discovery. (Docket No. 50.) 27 Plaintiff also requested that the pre-trial conference be rescheduled. (Id.) On 28 1 CIVIL 08-1260 (JA) 3 2 3 September 4, 2009, plaintiff s motion was granted and on November 18, 2009, 4 5 the court issued an order rescheduling the pre-trial conference for May 6, 2010 6 and the jury trial for June 7, 2010. (Docket Nos. 53 & 56.) Also, according to the 7 order the parties would propose a discovery timetable once the case had some 8 form. (Docket No. 53.) 9 10 On December 10, 2009, plaintiff filed a motion for leave to amend the 11 pleadings. (Docket No. 57.) In his motion plaintiff states that Dr. NegrÃ³n, Medical 12 Director of the prison; Mirna Nazario, pharmacist for the prison; and Mara 13 VÃ¡zquez, evaluator of the grievance procedure of the prison, have to be included 14 15 as defendants. (Id. at 1, ¶ 1.) Along with the motion, plaintiff attached a 16 proposed second amended complaint containing the allegations against the new 17 defendants as well as the full names of most of the defendants that already were 18 included in the case. (Docket No. 57-2.) According to plaintiff, Dr. NegrÃ³n and 19 20 Mrs. Nazario have denied him the medication prescribed by his prison treating 21 physicians. (Id. at 3, ¶ 7.) As to Mrs. VÃ¡zquez, plaintiff states that she has been 22 deliberately indifferent towards his medical needs by failing to give proper 23 attention to his complaints. (Id. at 3-4, ¶ 8.) 24 On December 14, 2009, the defendants opposed the amendment of the 25 26 pleadings as well as the inclusion of the additional defendants. (Docket No. 59.) 27 According to the defendants, plaintiff cannot be allowed to include the above 28 1 CIVIL 08-1260 (JA) 4 2 3 mentioned persons as additional defendants at this time because the claims 4 5 against them are time barred. (Id. at 2, ¶¶ 4 & 5.) The defendants also contend 6 that if plaintiff is allowed to amend the pleadings the proceedings would be 7 delayed. (Id. at 2-3, ¶ 6.) 8 II. ANALYSIS 9 10 Federal Rule of Civil Procedure 15(a) provides that where, as here, an 11 answer to the complaint has already been filed, a party may amend the party's 12 pleading only by leave of court or by written consent of the adverse party; and 13 leave shall be freely given when justice so requires. Redondo Const., Co. v. 14 15 16 17 18 Izquierdo, 249 F.R.D. 411, 411 (D.P.R. 2007) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). This however does not mean that leave to amend is always permitted because the court has discretion to deny leave to amend in the face of 19 20 extraordinary long and essentially unexplained delay. Redondo Const., Co. v. 21 Izquierdo, 249 F.R.D. at 411 (quoting Johnson v. Educ. Testing Serv., 754 F.2d 22 20, 27 (1st Cir. 1985) (citing Carter v. Supermarkets Gen. Corp., 684 F.2d 187, 23 192 (1st Cir. 1982)). 24 In other words an amendment [does not have] to be granted when it is 25 26 clear that there are good and compelling reasons to decline to do so. Redondo 27 Const., Co. v. Izquierdo, 249 F.R.D. at 411. 28 1 CIVIL 08-1260 (JA) 5 2 3 Plaintiff s motion for leave to amend the pleadings was filed almost two 4 5 years after the original complaint was filed, and 16 months after the first amended 6 complaint was filed. [F]indings of undue delay often occur in cases where a year 7 or longer has elapsed between . . . plaintiff[ s] last filed complaint and the request 8 for leave to amend. Febus-Cruz v. Sauri-Santiago, 652 F. Supp. 2d 166, 168 9 10 (D.P.R. 2009) (citing Badillo-Santiago v. Naveira-Merly, 378 F.3d 1, 7-8 (1st Cir. 11 2004) (thirteen to fourteen months); Acosta-Mestre v. Hilton Int l of P.R., Inc., 12 156 F.3d 49, 52 (1st Cir. 1998) (fifteen months); Grant v. News Group Boston, 13 Inc., 55 F.3d 1, 6 (1st Cir. 1995) (fourteen months)). 14 15 Plaintiff has the burden of showing some valid reason for [his] neglect and 16 delay when in cases such as the present one a considerable [amount] of time 17 has elapsed between the filing of the [amended] complaint and the motion to 18 amend. Rivera VÃ©lez v. P.R. Elec. Power Auth., 201 F.R.D. 289, 291 (D.P.R. 19 20 2001) (quoting Grant v. News Group Boston, Inc., 55 F.3d at 6 (citing 21 Stepanischen v. Merchants Despatch Trans. Corp., 722 F.2d 922, 933 (1st Cir. 22 1983)). Nevertheless, plaintiff has failed to do so. In his motion plaintiff only 23 states that as a result of an ongoing investigation he identified new defendants 24 that needed to be included in the case. Other than that plaintiff did not offer any 25 26 other reason that would justify the delay in filing the motion to amend the 27 pleadings. What plaintiff has shown is a lack of diligence, for . . . [his] belated 28 1 CIVIL 08-1260 (JA) 6 2 3 acquisition of this information. Rivera VÃ©lez v. P.R. Elec. Power Auth., 201 4 5 F.R.D. at 291. However, I cannot find that any significant burden would be 6 imposed either on the defendants or on the court since there is no indication that 7 discovery has been completed. The court has not set a deadline for discovery nor 8 for filing non-dispositive motions. 9 10 Nevertheless, in order for the court to allow plaintiff to add new defendants 11 and allegations at this stage of the proceedings the relation back requirements 12 must be meet. Rule 15(c)(1) makes [it] clear that if Puerto Rico law allows 13 relation back, that law should control to save the claim. Rivera v. Alvarado, 240 14 15 F. Supp. 2d 136, 141 (D.P.R. 2003) (citing Rivera-Ramos v. RomÃ¡n, 156 F.3d 16 276, 282 (1st Cir. 1998) ( For section 1983 actions, federal law governs the date 17 on which the cause of action accrues while the length of the period and tolling 18 doctrine are taken from local law. )) There are at least two instances where the 19 20 law of Puerto Rico allows for relation back. 21 The first case in which relation back is allowed occurs when a plaintiff seeks 22 to amend the complaint in order to identify John Doe defendants. See Del Valle 23 v. Vornado Realty Trust, 515 F. Supp. 2d 222, 226 (D.P.R. 2007) and Santiago 24 v. Becton Dickinson & Co., S.A., 539 F. Supp. 1149, 1153-54 (D.P.R. 1982). Rule 25 26 15(c)(1)(C) states that [a]n amendment to a pleading relates back to the date 27 of the original pleading when . . . the amendment changes the party or the 28 1 CIVIL 08-1260 (JA) 7 2 3 naming of the party against whom a claim is asserted . . . . Fed. R. Civ. P. 4 5 15(c)(1)(C); see Educadores PuertorriqueÃ±os v. Rey HernÃ¡ndez, 508 F. Supp. 2d 6 164, 179 (D.P.R. 2007). [I]n order for the substitution to relate back to the date 7 of filing of the [amended] complaint: (1) the amendment must have arisen from 8 the same transaction as the original pleading, (2) the newly-named defendant 9 10 must have received notice of the claim prior to expiration of the term to serve the 11 complaint, i.e., 120 days from having filed suit, and (3) but for a mistake in 12 identity plaintiff would have named the substituting defendant in the original 13 pleading. Educadores PuertorriqueÃ±os v. Rey HernÃ¡ndez, 508 F. Supp. 2d at 179 14 15 (citing Leonard v. Parry, 219 F.3d 25, 28 (1st Cir. 2000)). The current Puerto 16 Rico provision for amendments to the complaint mirrors its federal counterpart. 17 Educadores PuertorriqueÃ±os v. Rey HernÃ¡ndez, 508 F. Supp. 2d at 179. 18 The second instance where relation back is permitted is under Puerto Rico s 19 20 doctrine of solidarity which allows a plaintiff to amend a complaint to include joint 21 tortfeasors not originally included in the complaint so long as the [amended] 22 complaint was timely filed and the element of solidarity was well pled. Rivera v. 23 Alvarado, 240 F. Supp. 2d at 141 (citing Arroyo v. Hospital La ConcepciÃ³n, 130 24 D.P.R. 596 (1992)). All that is required is that the newly added tortfeasors are 25 26 solidarily liable with the original defendants and that the causes of action asserted 27 against them are identical to those alleged against the original defendants. 28 1 CIVIL 08-1260 (JA) 8 2 3 Rivera v. Alvarado, 240 F. Supp. 2d at 141 (citing RodrÃguez-NarvÃ¡ez v. Nazario, 4 5 895 F.2d 38, 44 (1990); Tokyo Marine & Fire Ins. Co. v. PÃ©rez & Cia., de P.R., 6 Inc., 142 F.3d 1, 4 (1st Cir. 1998)). 7 8 In this case it is not clear whether the defendants that plaintiff wishes to add are for the purpose of identifying John Doe defendants or to include joint 9 10 tortfeasors that were not originally included in the complaint. 11 Under the first scenario, even assuming that plaintiff was in fact seeking to 12 identify John Doe defendants, he has not shown that the defendants had notice 13 of the action within the period prescribed by Federal Rule of Civil Procedure 4(m). 14 15 In addition, plaintiff also has not shown that if not for a mistake the substituting 16 defendants would have been named in the original complaint. The addition of the 17 new defendants may present a claim arising out of the same conduct, transaction, 18 or occurrence set out in the original pleading. Plaintiff however has not shown 19 20 that this requirement is met. Therefore, it is evident that plaintiff s effort to 21 include Dr. NegrÃ³n, Mrs. Nazario and Mrs. VÃ¡zquez as defendants is futile since 22 he has failed to met all of the requirements under Rule 15(c)(3). 23 24 However, under the second scenario plaintiff would be allowed to add new defendants as joint tortfeasors because the claims against them are identical to 25 26 those alleged in the amended complaint. Also, although the amended complaint 27 does not expressly state that the defendants are solidarily liable for the damages 28 1 CIVIL 08-1260 (JA) 9 2 3 he claims to have suffered, it does however state that they were caused by the 4 5 defendants alleged acts and omissions. The law of Puerto Rico states that in 6 order to determine whether or not two or more persons can be held jointly and 7 severally liable as joint tortfeasors, it is necessary that their combined negligence 8 caused plaintiff s damages. Wojciechowicz v. United States, 474 F. Supp. 2d 291, 9 10 295 (D.P.R. 2007). Therefore, based on the claims made by plaintiff, Dr. NegrÃ³n, 11 Mrs. Nazario and Mrs. VÃ¡zquez are solidarily liable with the defendants that were 12 originally named in the amended complaint. What is left to decide is whether or 13 not the filing of the original complaint and the amended complaint tolled the 14 15 statute of limitations as to the unnamed defendants. 16 In Puerto Rico, the one year statutory limitation for tort action governs § 17 1983 claims. GarcÃa-RodrÃguez v. Laboy, 598 F. Supp. 2d 186, 193 (D.P.R. 18 2008) (citing Article 1868(2) of the Civil Code, P.R. Laws Ann. tit. 31, § 5298(2); 19 20 Altair Corp. v. Pesquera de Busquets, 769 F.2d 30, 31 (1st Cir. 1985)). Tolling 21 provisions are also governed by the law of Puerto Rico. See Rivera-Ramos v. 22 RomÃ¡n, 156 F.3d at 282. [T]he filing of a timely complaint, will toll the statute 23 of limitations for the entire duration of the case, regardless of its outcome. 24 Rivera v. Alvarado, 240 F. Supp. 2d at 142. Also, [a]ny subsequent amendments 25 26 27 28 to the complaint adding joint tortfeasors and alleging the same claims filed against 1 CIVIL 08-1260 (JA) 10 2 3 the original defendants are consequently not time barred. Id. (citing Tokyo 4 5 Marine & Fire Ins. Co. v. PÃ©rez & Cia., de P.R., Inc., 142 F.3d at 9-10.) 6 However, the date of accrual is a federal law question. GarcÃa-RodrÃguez 7 v. Laboy, 598 F. Supp. 2d at 193 (citing Carreras-Rosa v. Alves-Cruz, 127 F.3d 8 172, 174 (1st Cir. 1997)). As such, [t]he one-year statute of limitations begins 9 10 running one day after the date of accrual, which is the date plaintiff knew or had 11 reason to know of the injury. GarcÃa RodrÃguez v. Laboy, 598 F. Supp. 2d at 193 12 (quoting BenÃtez-Pons v. Commonwealth of P.R., 136 F.3d 54, 59 (1st Cir.1998)). 13 [A] plaintiff is deemed to know or have reason to know at the time of the act 14 15 itself and not at the point that the harmful consequences are felt. MorÃ¡n-Vega 16 v. Cruz-Burgos, 537 F.3d 14, 20 (1st Cir. 2008) (quoting Marrero-GutiÃ©rrez v. 17 Molina, 491 F.3d 1, 6 (1st Cir. 2007)). 18 The last acts and omissions by the defendants which allegedly caused 19 20 plaintiff s damages occurred on September 2007. From thereon the clock began 21 running because plaintiff knew about the damages he allegedly suffered as a 22 result of the defendants conduct. The statutory period therefore would have 23 expired on September 2008. 24 The original complaint was filed by plaintiff on February 29, 2008. The complaint was later amended on August 15, 2008. It is 25 26 clear that both the complaint and the amended complaint were filed in a timely 27 manner before the statutory period could expire. Thus, the statute of limitations 28 1 CIVIL 08-1260 (JA) 11 2 3 as to the unnamed defendants was tolled. Having met the relate back 4 5 requirements under Puerto Rico s solidarity doctrine, plaintiff is allowed to add Dr. 6 NegrÃ³n, Mrs. Nazario and Mrs. VÃ¡zquez as defendants as well as the allegations 7 that are made against them. 8 III. CONCLUSION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In view of the above, plaintiff s motion for leave to amend the pleadings is GRANTED. At San Juan, Puerto Rico, this 20th day of January, 2010. S/ JUSTO ARENAS Chief United States Magistrate Judge

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