United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING PLAINTIFF'S MOTION TO FILE FIFTH
plaintiff's motion to file fifth amended complaint, filed
on February 21, 2017 [dkt. 96], has been considered. The
plaintiff's original complaint was filed on January 8,
2016. In the Entry of January 12, 2016, the Court dismissed
claims brought against a number of the defendants because
they lacked minimum contacts with Indiana. Dkt. 3. The
plaintiff filed an amended complaint on February 16, 2016,
and a second amended complaint on March 1, 2016. On March 31,
2016, the Court screened the second amended complaint in
accordance with 28 U.S.C. § 1915A(b). Dkt. 18. A number
of claims, including those against Warden Daniels, William E.
Wilson, and other defendants, were dismissed for failure to
state a claim upon which relief can be granted. Claims
against the United States and PA Cox were allowed to proceed.
9, 2016, the plaintiff sought leave to file another amended
complaint. Dkt. 28. He tendered a third amended complaint,
but the Court directed him to file a fourth amended complaint
that included all of his claims in a single document and that
did not include claims that had already been dismissed. Dkt.
11, 2016, the plaintiff filed a fourth amended complaint. The
Court screened the fourth amended complaint on July 20, 2016,
allowing additional claims to proceed against defendants
Rupska, Scharff, and May, along with the claims against PA
Cox and the United States. Dkt. 34. The defendants have
answered the fourth amended complaint and have filed motions
for summary judgment which are now fully briefed.
of the Federal Rules of Civil Procedure provides
that after an answer is filed, "a party may amend its
pleading only with the opposing party's written consent
or the court's leave." Rule 15(a)(2). "The
court should freely give leave when justice so
requires." Id. In this instance, the opposing
parties have opposed the amendment. Dkt. 102. Therefore, the
Court must determine whether justice requires the Court to
Supreme Court has interpreted [Rule 15(a)(2)] to require a
district court to allow amendment unless there is a good
reason-futility, undue delay, undue prejudice, or bad faith-
for denying leave to amend." Life Plans, Inc. v.
Sec. Life of Denver Ins. Co., 800 F.3d 343, 357-58 (7th
Cir. 2015) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)); see also Heng v. Heavner, Beyers & Mihlar,
LLC, 849 F.3d 348, 354 (7th Cir. 2017) ("District
courts have broad discretion to deny leave to amend where
there is undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies, undue prejudice to the
defendants, or where the amendment would be futile.")
(internal quotation omitted).
plaintiff's motion to file yet another amended complaint
comes more than a year after the action was initially filed.
The plaintiff's proposed fifth amended complaint alleges
a new claim that he has been infected with Hepatitis C
through contaminated insulin vials. It is not appropriate for
the plaintiff to continue to attempt to add claims that have
arisen since the case was opened as a sort of
running commentary on his medical treatment in prison.
Moreover, the attachments to his proposed fifth amendment
indicate that the plaintiff has only recently been diagnosed
with Hepatitis C. Dkt. 96-2. Any claims of deliberate
indifference relating to a "new" condition should
be brought in a new action.
proposed fifth amended complaint, the plaintiff also alleges
that Dr. William E. Wilson was informed on June 25, 2016, by
an emergency room physician that the plaintiff needed surgery
within 24 hours, but Dr. Wilson failed to obtain the surgery
until June 29, 2016. The plaintiff has not alleged facts that
amount to deliberate indifference on the part of Dr. Wilson.
Negligence is not sufficient to state a claim under the
Eighth Amendment. In addition, the medical record attached to
the fifth amended complaint, does not support the
plaintiff's allegations. Dkt. 96-4. The hospital chart
indicates that on June, 26, 2016, the ophthalmologist
covering for Dr. Minturn was contacted. "He [the
ophthalmologist] will direct when he will see the patient,
which is either today or tomorrow." Id. at p.
3. The patient "should be seen in about a 24-hour
period." Id. "Dr. Eric Wilson is aware of
this plan." Id. Even assuming Dr. Eric Wilson
and Dr. William Wilson are the same person, this claim
against Dr. William Wilson would be dismissed for failure to
state a claim and therefore such an amendment would be
light of the posture of the case with fully briefed summary
judgment motions, the plaintiff's ample prior
opportunities to amend the complaint, the fact that the
proposed claims are misjoined or futile, and the lack of good
cause for a fifth amendment, the Court finds that justice
does not require that it grant leave to amend at
this stage in the litigation. The plaintiffs motion to file a
fifth amended complaint [dkt. 96] is den ...