United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE.
matter is before the Court on a Motion to Amend Complaint [DE
66], filed by Plaintiff on March 12, 2018. Defendants
Corizon, Inc., Dr. Michael Mitcheff, Debra Goff-Ellis, Dr.
Andrew Liaw, Diamond Campbell, and Debbie Reeger filed a
response on March 22, 2018. Plaintiff filed no reply, and the
time to do so has passed.
15, 2015, Plaintiff filed his initial Complaint in state
court, asserting claims of failure to provide medical care
and/or medical malpractice resulting in violations of
Plaintiff's civil rights while he was incarcerated. The
case was removed to this Court on July 29, 2015, and on
November 20, 2016, this Court stayed the case pending the
outcome of a related proceeding before the medical review
panel of the Indiana Department of Insurance. On September 1,
2017, being advised that the review panel had issued its
opinion, the Court lifted the stay. At a subsequent
scheduling hearing, the Court set various deadlines. On
December 8, 2017, with leave of this Court, Plaintiff filed a
Revised Complaint for Damages correcting the name of one of
the defendants. The parties filed answers to the amended
complaint on December 12, 2017, February 2, 2018, and
February 21, 2018. Plaintiff filed the instant Motion on
March 12, 2018, which was the deadline for submitting motions
to amend the pleadings. Discovery is ongoing and no
dispositive motions have been filed.
seeks to join two new defendants, Barbara Brubaker, NP/APN,
and Katherine Hutchinson, LPN, and to add Count V, a claim
based in contract law.
Rule of Civil Procedure 15(a) provides that, when a party
seeks leave to amend a pleading, the “court should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Thus, if the underlying facts or
circumstances relied upon by a plaintiff are potentially a
proper subject of relief, the party should be afforded an
opportunity to test the claim on the merits. Foman v.
Davis, 371 U.S. 178, 182 (1962). The decision whether to
grant or deny a motion to amend lies within the sound
discretion of the district court. Campbell v. Ingersoll
Milling Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990).
However, leave to amend is “inappropriate where there
is undue delay, bad faith, dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, or futility of the
amendment.” Villa v. City of Chicago, 924 F.2d
629, 632 (7th Cir. 1991) (citing Foman, 371 U.S. at
183). An amendment is “futile” if it would not
withstand a motion to dismiss or motion for summary judgment.
Vargas-Harrison v. Racine Unified Sch. Dist., 272
F.3d 964, 974 (7th Cir. 2001); see also Sound of Music
Co. v. 3M, 477 F.3d 910, 923 (7th Cir. 2007).
plaintiff seeks to add new defendants through an amended
complaint, Federal Rule of Civil Procedure 20 is implicated.
See Chavez v. Ill. State Police, 251 F.3d 612,
631-32 (7th Cir. 2001). It provides that defendants may be
joined to an action if “(A) any right to relief is
asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to
all defendants will arise in the action.” Fed.R.Civ.P.
20(a)(2). “The standard for permissive joinder under
Rule 20 is liberal, ” Eclipse Mfg. Co. v. M & M
Rental Ctr., Inc., 521 F.Supp.2d 739, 744 (N.D. Ill.
2007), and “courts are inclined to find that claims
arise out of the same transaction or occurrence when the
likelihood of overlapping proof and duplication in testimony
indicates that separate trials would result in delay,
inconvenience, and added expense to the parties and to the
court.” 7 Charles Alan Wright et al., Federal Practice
and Procedure § 1653 (3d ed. 2001); see also
Chavez, 251 F.3d at 632; Thompson v. Boggs, 33
F.3d 847, 858 (7th Cir. 1994).
asserts that the proposed defendants provided medical
services at issue in his Complaint, that his claims against
them arise out of the same occurrences as underline his
initial Complaint, and that without their participation he
may not be afforded full relief from the other defendants.
Defendants object to Plaintiff's delay in filing his
proposed Amendment, noting that he has had access to his own
medical records for over two years and could have added the
proposed defendants at an earlier point in the litigation. It
is true that the instant Motion was filed more than six
months after the stay was lifted; however, it was made within
the deadline for motions to amend the pleadings and is
therefore timely. Other amendment factors also weigh in
Plaintiff's favor. There is no appearance of bad faith or
dilatory motive on Plaintiff's behalf, and Plaintiff has
only once before amended his complaint, solely to correct the
erroneous spelling of a defendant's name.
also argue that one of the proposed Defendants, Ms. Brubaker,
cannot be joined to this action because she is a
“qualified healthcare provider” legally entitled
to the protections of the Indiana Medical Malpractice Act.
That Act provides that “an action against a health care
provider may not be commenced in a court in Indiana before .
. . the claimant's proposed complaint has been presented
to a medical review panel [and] an opinion is given by the
panel.” I.C. § 34-18-8-4. Defendants represent
that Ms. Brubaker was not part of the medical review panel
proceeding that has already occurred related to this case.
They contend, therefore, that any malpractice-related charges
against her would not survive a motion to dismiss, and she
could then only be sued under the federal claims. In
addition, Defendants note that the medical review panel found
that the other medical-provider defendants did not breach the
standard of care; they assert that it would be unfair for
Plaintiff to assert his claims against new defendants now.
Defendants are correct that any claim against Ms. Brubaker
sounding in state medical malpractice law would be futile.
However, in addition to asserting medical malpractice,
Plaintiff has brought claims of federal civil rights
violations; he should be afforded an opportunity to proceed
on those claims, even against Ms. Brubaker. Therefore, he
will be permitted to add both Ms. Hutchinson and Ms. Brubaker
as party defendants, but cannot seek or obtain relief from
Ms. Brubaker under the Indiana Medical Malpratice Act.
also seeks to add Count V, breach of a contract between the
Indiana Department of Corrections and Corizon Health, Inc.,
under a third-party beneficiary theory. Defendant does not
set forth any argument against this addition.
Defendants object to the “other unidentified health
care workers” inserted as placeholder defendants in
both the existing complaint and in Plaintiff's proposed
Second Amended Complaint. Defendants, citing Wudtke v.
Davel, contend that including a list of anonymous
defendants in federal court is “pointless.” 128
F.3d 1057, 1060 (7th Cir. 1997). They further argue that
there is no reason why any potential defendants have not been
identified by now. Additionally, Plaintiff would need to file
another motion to amend the complaint to name those
providers, and the deadline to do so has passed. Therefore,
Plaintiff is directed to remove “other unidentified
health care workers” from the list of defendants in his
Second Amended Complaint.
allowing Plaintiff to file the proposed amended complaint
would be futile as to any malpractice claims asserted against
proposed Defendant Barbara Brubaker, but not as to the rest
of the Complaint, the Court GRANTS in part and DENIES
in part the Motion for Leave to Amend Complaint [DE
20]. Plaintiff shall have up to and including
July 13, 2018, within which to
FILE his Second Amended Complaint that (1)
names the two new proposed defendants, Ms. Brubaker and Ms.
Hutchison, but does not assert any claim for any relief
against Ms. Brubaker that would be foreclosed under the