United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE.
before this Court is pro se Plaintiff, William
Samuel McLean Jr.'s motion for leave to file a second
amended complaint. (Doc. No. 128). For the foregoing reasons,
Plaintiff's motion will be denied.
December 12, 2014, Plaintiff, an inmate confined at the
Federal Correctional Institution at Schuylkill, Minersville,
Pennsylvania (“FCI-Schuylkill”) filed this action
against the Federal Bureau of Prisons (“BOP”)
pursuant to the Federal Tort Claims Act, 28 U.S.C. §
2671. (Doc. No. 1.) On February 26, 2015, Plaintiff filed an
amended complaint substituting the United States as the
Defendant along with a motion to serve the amended complaint.
(Doc. Nos. 20, 21.) By Order dated April 10, 2015, the motion
to serve the amended complaint was granted, the Federal
Bureau of Prisons was terminated as a Defendant, and the
United States of America was added as the sole Defendant in
this action. (Doc. No. 25.)
amended complaint and attachments thereto reveal that
Plaintiff alleges that when he arrived at FCI-Schuylkill on
December 5, 2011, that he and other newly arrived inmates
were informed by Tamara Blaschak, an emergency medical
technician, that they would all receive a skin test for
tuberculosis, i.e., a purified protein derivative (PPD) test.
(Doc. No. 20.) Plaintiff claims that he informed EMT Blaschak
that he previously had TB and also had a PPD test in 1994 and
that those facts were documented in his medical records
maintained by the BOP. (Id.) McLean alleges that he
objected to the administration of the PPD test and that EMT
Blaschak informed him and the other inmates that the test was
mandatory and that if he refused he would be taken
immediately to a special housing unit cell, strapped down and
given the PPD test. (Id. at 22-23.)
light of those threats, McLean claims he submitted to the
test which resulted in an allergic reaction within a short
period of time and left a permanent scar on his left forearm.
(Id. at 11.) McLean also alleges that he suffered
damage to the muscle of the left forearm and still suffers
pain from the administration of the test. (Id.)
McLean contends that EMT Blaschak knew that his medical
records showed that administering the test to him was
“conterindacated.” (Id. at 4 and 11.)
McLean contends that EMT Blaschak was negligent by
administering the test and committed an assault and battery
on his person. (Id. at 1-6.) He also contends that
the clinical director, Ellen Mace-Leibson, D.O., and Health
Services Administrator McKinney were negligent for issuing
standing orders that all newly arrived inmates receive a PPD
9, 2015, the United States filed a motion to dismiss the
amended complaint pursuant to Federal Rule of Civil Procedure
12(b), or in the alternative for summary judgment pursuant to
Federal Rule of Civil Procedure 56. (Doc. No. 27.) On January
22, 2016, McLean filed a brief in opposition. (Doc. No. 55.)
By Memorandum and Order, the Court granted in part and denied
in part Defendant's motion. (Doc. Nos. 59, 60.) The Court
dismissed Plaintiff's claims of assault and battery and
denied the motion in all other respects. (Id.)
Accordingly, the only remaining claim is his FTCA claim
against the United States. Defendant subsequently filed its
answer to the amended complaint on March 14, 2016. (Doc. No.
discovery had been completed, Plaintiff filed the instant
motion for leave to file a second amended complaint on May
22, 2017 (Doc. No. 128.), along with a proposed second
amended complaint and brief in support. (Doc. No. 129.) In
his motion, Plaintiff seeks to add the Federal Bureau of
Prisons as well as five new individual defendants to the
action, along with a new claim sounding in Bivens.
(Id.) Defendant has filed its oppositional brief,
arguing that Plaintiff's request should be denied as
futile because: (1) he has failed to administratively exhaust
his new Bivens claim; (2) the BOP is not a proper
part to the proposed Bivens action; (3) four of the
five individuals lack personal involvement with the sole
issue in this case; (4) Plaintiff fails to state a claim of
deliberate indifference; and (5) the statute of limitations
bars Plaintiff's proposed amended complaint. (Doc. No.
132.) Plaintiff filed a reply brief on July 10, 2017. (Doc.
leave to amend a pleading pursuant to Federal Rule of Civil
Procedure 15(a) should be “freely give[n] when justice
so requires.” Fed.R.Civ.P. 15(a)(2). However, a court
need not grant leave to amend in the presence of bad faith,
undue delay, undue prejudice, or futility. See Diaz v.
Palakovich, 448 Fed.Appx. 211, 215-16 (3d Cir. 2011)
(citing Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.
2000)); see also Lorenz v. CSX Corp., 1 F.3d 1406,
1414 (3d Cir. 1993). “Delay becomes ‘undue, '
and thereby creates grounds for the district court to refuse
leave, when it places an unwarranted burden on the court or
when the plaintiff has had previous opportunities to
amend.” Bjorgung v. Whitetail Resort, LP, 550
F.3d 263, 266 (3d Cir. 2008) (citation omitted). Even where
there is no undue delay, prejudice to the non-moving party
remains the touchstone for the denial of a motion to amend.
Arthur v. Maersk, Inc., 434 F.3d 196, 202 (3d Cir.
2006). The court must consider whether granting leave to
amend the complaint “would result in additional
discovery, cost, and preparation to defend against new facts
or new theories.” Cureton v. Nat'l Collegiate
Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001).
Plaintiff seeks to add a Bivens claim against five
new individual defendants. This motion comes after this Court
has granted several extensions of the discovery deadline,
which closed on March 28, 2017, as well as after the time to
file dispositive motions has closed. It also has been filed
almost two and a half years after the commencement of this
action. (See Doc. No. 1 and Doc. No. 128.)
Plaintiff's original complaint suggests that he was aware
of a potential Bivens claim, but failed to assert
it. (See Doc. No. 1.) Plaintiff's amended
complaint also suggests that he was aware of a potential
Bivens claim and again failed to assert it.
(See Doc. No. 20.); See Bjorgung, 550 F.3d
at 266 (“Delay becomes ‘undue, ' and thereby
creates grounds for the district court to refuse leave, when
it places an unwarranted burden on the court or when the
plaintiff has had previous opportunities to amend.”).
Plaintiff were permitted to add new allegations and
defendants, discovery should be re-opened to permit the
parties to conduct discovery regarding the new claim and
defendants, and additional dispositive motions would likely
be filed. Courts presented with similar circumstances have
denied such an invitation citing that the time and expense of
re-opening discovery is sufficiently prejudicial to prevent
the addition of new claims. See Berger v. Edewater Steel
Co., 911 F.2d 911, 923-24 (3d Cir. 1990) (denying motion
to add additional claims made four months after new
information became available and two months after close of
extended discovery); Ahmed v. Ringler, No.
2:13-CV-1050, 2017 WL 30017, at *6 (E.D. Cal. Jan. 4, 2017);
Lockheed Martin Corp. v. Network Solutions, Inc.,
194 F.3d 980, 986 (9th Cir. 1999) (“A need to reopen
discovery and therefore delay the proceedings supports a
district court's finding of prejudice from delayed motion
to amend the complaint.”); Priddy v. Edelman,
883 F.2d 438, 447 (6th Cir. 1989) (“Putting the
defendants through the time and expense of continued
litigation on a new theory, with the possibility of
additional discovery, would be manifestly unfair and unduly
prejudicial.”); Bassani v. Sutton, 430 F.
App'x. 596, 597 (9th Cir. 2011) (holding that “the
district court's ultimate conclusions - that there would
be undue delay and prejudice to the defendants if [the
plaintiff] were allowed to amend his complaint two years into
litigation and after the close of discovery -were not an
abuse of discretion.”).
noted above, this action is not in its preliminary stages.
The first amended complaint was filed more than two years
ago, both parties received numerous extensions regarding
discovery deadlines and discovery was officially closed on
March 28, 2017. Moreover, there is every indication that
Plaintiff could have brought this Bivens claim and
named the five additional defendants he now seeks to add in
either his original or first amended complaint. For these