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Mullin v. Balicki

United States Court of Appeals, Third Circuit

November 6, 2017

JOAN MULLIN, Administratrix of the Estate of Robert Mullin, deceased and Joan Mullin, individually
ADMINISTRATOR KAREN BALICKI; ROBERT PATERSON; DIRECTOR MARIE DUNLAP-PRYCE; JANE BYRD, LPN; ERIN MARUSKY, R.N.; OFFICER DIMLER; NURSE BEATRICE TEEL; KINTOCK GROUP; COUNTY OF MERCER; JOHN DOES 4-10 (as yet identified and unknown governmental, county, or state officials, supervisors, agents or employees); ABC ENTITIES 1-10 (as yet identified and unknown governmental, county, or state officials, supervisors, agents or employees) Joan Mullin, Appellant

          Argued on June 7, 2017

         On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3-11-cv-00247) District Judge: The Honorable Mary Little Cooper

          Shelley L. Stangler, Esq. [Argued] Law Offices of Shelly L. Stangler, P.C. 155 Morris Avenue, Suite 202 Springfield, N.J. 07081 Counsel for the Appellant

          Gregory R. Bueno, Esq. [Argued] Daniel M. Vannella, Esq. Office of Attorney General of New Jersey 25 Market Street, P.O. Box 112 Trenton, N.J. 08625 Counsel for the Appellees

          Before: CHAGARES, VANASKIE, and FUENTES, Circuit Judges



         A little over two years into the civil-rights suit brought by Joan Mullin ("Mullin") over the tragic prison suicide of her son, Robert Mullin ("Robert"), Mullin's attorney received a discovery document with the potential to reshape the case. A previously undisclosed investigative report about the night Robert died contained statements by fellow New Jersey inmates about a prison guard who allegedly refused Robert's requests for psychiatric assistance-and urged Robert to kill himself instead. But while Mullin's attorney received this report mid-case, it was not reviewed in a timely fashion. Instead, due to a clerical error, the disc containing the relevant disclosures was misfiled, and not fully accessed until about ten months later. By that time, Mullin's operative complaint-premised on a less direct knew-or-should-have-known theory of Robert's vulnerability to suicide-had already been dismissed in large part. The District Court denied Mullin's request for leave to amend her complaint, due in part to the delay caused by counsel's error and, after additional motion practice, granted summary judgment in favor of the one remaining defendant, bringing the litigation to a close.

         Mullin's appeal encompasses both the dismissal of her operative complaint and the order denying further leave to amend. The latter is the focus of this opinion. For the reasons set forth below, we conclude that the decision denying leave to amend amounted to an impermissible exercise of discretion. Some of the factors relied upon to deny leave are not supported by the record or are at odds with our case law. And while we do not intend to minimize counsel's mistake, it does not, standing alone, support denying leave to amend. Accordingly, we will vacate the order denying leave to amend and will remand for further proceedings.

         I. Background[1]

         A. Robert's Death and Mullin's Initial Investigation

         During the early morning hours of January 17, 2009, New Jersey prisoner Robert Mullin hanged himself with a bedsheet that he had fashioned into a noose. The twenty-nine-year-old Robert had been in and out of prison for the better part of a decade, in part due to his ongoing struggles with substance abuse. While serving out his latest sentence at a halfway house, Robert was found in possession of contraband. As a result, he was transferred to New Jersey's Central Reception & Assignment Facility ("Assignment Facility"), where he was assessed and assigned to an area of the facility that did not feature extensive or individualized supervision by staff. It was there, in his Assignment Facility cell, that he took his own life-less than a day after entering the Facility.

         In the aftermath, Robert's mother, Joan Mullin, sought answers. What few were given, however, were incomplete and at times inaccurate. In one instance, she was told that her son had died at a completely different facility, the Trenton Psychiatric Hospital-an error repeated on his death certificate. Despite some slow progress, she continued to lack key information about the final days and hours of Robert's life and the people and entities to whom his care was entrusted.

         B. Mullin Files the Original Complaint in January 2011

         Despite this state of affairs, Mullin filed suit in the District of New Jersey shortly before the two-year mark of Robert's death, [2] raising state tort claims and constitutional vulnerability-to-suicide claims (the latter of which is a variation on a constitutional claim alleging deliberate indifference to a serious medical need). The complaint focused on the defendants' alleged failure to provide Robert with the level of care, treatment, and monitoring that he needed, and that was required by prison policy for someone with his history of depression, self-harm, and substance abuse. Mullin alleged that Robert was placed in a cell that was inadequately supervised and altogether inappropriate for a person with a history of suicide attempts-a decision made all the more inexcusable by the medical history and recent relapse into drug addiction that his custodians failed to properly review or otherwise heed.

         Mullin named a variety of defendants, several of whom were employed by the State of New Jersey and represented by the New Jersey Attorney General's office. We will refer to these as the "State Defendants."

         C. Mullin Twice Amends Her Complaint

         Mullin twice amended her complaint to both flesh out the facts-in part to account for interim discovery she received from non-State defendants-and to modify the list of defendants. In particular, Mullin sought to add Officer Nicholas Dimler, the Assignment Facility guard who, according to the medical examiner's report, was the last person (who wasn't a fellow inmate) to see Robert alive-and the one who later discovered his body.

         Mullin's first attempt to amend, filed in response to the defendants' initial Rule 12 motions, was granted in part and denied in part. Among other things, the Magistrate Judge determined that the proposed amended complaint lacked sufficient detail of Dimler's involvement in Robert's death and did not state a plausible claim for relief against him. Under these constraints, Mullin filed her first amended complaint ("FAC") in December 2011.

         After obtaining additional discovery, Mullin again asked to amend in July 2012, arguing in part that she could now plead a viable claim against Officer Dimler. Mullin alleged essentially that Officer Dimler knew or should have known of Robert's history of suicide and psychiatric illness; that Dimler failed to review records that would have alerted him to Robert's condition; and that Dimler failed to follow prison policies and reasonable practices pertaining to inmates with Robert's vulnerabilities. This time, the Magistrate Judge allowed Mullin's amendment to include the revised allegations against Officer Dimler, finding them to be "plausible" instead of merely possible.[3] Mullin's Second Amended Complaint ("SAC"), the operative complaint for the remainder of the litigation in the District Court, was then filed in September 2012. The SAC, like its predecessors, was met with Rule 12 motions to dismiss.

         D. While the Motions to Dismiss are Pending, Mullin Receives New Evidence in Discovery

         Although Mullin had obtained some discovery by the time the SAC was filed-almost two years into the litigation-she had received no disclosures from the State Defendants and, by extension, from the Department of Corrections or the State itself. The State Defendants finally made two separate document disclosures, pursuant to an amended pretrial scheduling order, while their motion to dismiss was pending. Both sets bear on Mullin's later attempt at amendment, although for very different reasons.

         One set of disclosures, from July 2013 (the "July 2013 disclosures"), contained information on various prison policies regarding suicide watch, close custody, and screening procedures employed by the Assignment Facility. For instance, Mullin received a policy manual on "Special Needs Inmates, " covering inmates who suffer from certain psychiatric disorders and are "unable to meet the functional requirements of incarceration without mental health treatment."[4] It appears that the July 2013 disclosures did not pertain to Robert individually or contain information relating to the night he died.

         More important was a set of disclosures from April 2013 (the "April 2013 disclosures") that, by contrast, contained information directly relevant to Robert and his history in the prison system. Among the new revelations were statements from fellow inmates about a prison guard who allegedly ignored Robert's requests for mental health services and, instead, told him to commit suicide.

         These statements were contained in a February 2009 Department of Corrections Administrative Investigation Report ("the Report"). According to the Report, a previously unknown guard, Officer X, [5] interacted with Robert over his only evening at the facility, and may have been the last person (instead of Officer Dimler) to see Robert alive. The details of Officer X's interaction with Robert, as related in the Report, were very disturbing. Six inmates, who had been interviewed about Robert hours after his suicide-close in time to the incident, and potentially before having any opportunity to get their stories straight-volunteered that they had heard Robert ask Officer X to see "psych, " and that Officer X had refused Robert's request and taken no action. Three of the inmates went further: Officer X not only refused assistance, but egged Robert on, telling him that he "might as well kill [him]self."[6] The Report therefore suggested Officer X's actual awareness of, and indifference to, Robert's condition. The Report elsewhere revealed that Robert was in fact classified as a "special needs" inmate requiring enhanced levels of care.[7] Thus, although Officer X, interviewed later, flatly denied both parts of this account, the Report had the potential to reframe and support Mullin's case.

         E. Counsel's Error: The April 2013 Discovery is Misplaced

         But this potential would go untapped-at least for the time being-because Mullin did not initially know that it had been received. The April 2013 material was subdivided and Bates stamped as "DOC MULLIN 0001-392" and "CONFIDENTIAL MULLIN 0001-305."[8] Due to a clerical error, Mullin's attorney failed to review the CONFIDENTIAL MULLIN material that contained the Report and other relevant documents. The disclosures had been provided by the State Defendants on two optical discs, one for the MULLIN material and the other for the CONFIDENTIAL MULLIN material. The attorney asked her staff to print out both discs for review, but one disc was printed twice and the other was misfiled in the folder of an unrelated matter. And because Mullin's attorney was not aware of the new material, she did not move to further amend her complaint, even though an earlier scheduling order had suggested that further amendment for truly "new" discoveries might be allowed.

         F. The District Court Dismisses the SAC

         With Mullin unaware of the new discovery, the SAC- whose allegations were premised on the theory that the defendants should have known, based on Robert's answers to intake questions and his transfer/medical records, that he was particularly vulnerable to suicide-remained the operative complaint. Thus, unlike prior motions to dismiss, which had been interrupted by Mullin's requests to amend, these Rule 12 motions were resolved on the merits, with the District Judge directly addressing Mullin's claims for the first time. In a November 2013 decision, the District Court granted the State Defendants' motion to dismiss in its entirety, although the Court allowed Mullin's claims against the Assignment Facility intake nurse to proceed to summary judgment and, thus, the case remained ongoing.[9]

         G. Realizing the Mistake, Counsel Moves to Amend

         Despite indications that something was missing, Mullin's attorney only realized her mistake in February 2014-ten months after the April 2013 disclosures, and three months after the District Court had dismissed the SAC in large part-during a conversation with attorneys for non-state defendants who were privy to the CONFIDENTIAL MULLIN material. In the flurry of activity that followed, Mullin's attorney advised the District Court of her mistake and, after being told by the court to delay formally moving to amend until a pending reconsideration motion was resolved. Mullin moved in August 2014 to amend her complaint to include information from the April and July 2013 disclosures. In addition to repleading claims against Dimler and other previously dismissed defendants, Mullin's proposed Third Amended Complaint ("TAC") incorporated the material from the April and July 2013 disclosures and added Officer X, a fellow guard, and four supervisors as defendants.

         H. Leave to Amend is Denied

         The presiding Magistrate Judge denied leave to amend, finding that Mullin's delay was undue and that the defendants would suffer prejudice if amendment were allowed. The Judge also suggested in passing that claims against new parties would not "relate back" for limitations purposes under Rule 15(c). The Magistrate Judge did not directly address the futility of the proposed amendment, which had not been raised by the State Defendants. After Mullin objected to the Magistrate Judge's order, the District Court affirmed it in a short decision.[10] Mullin timely appealed.

         II. Discussion[11]

         A. Rule 15 and Standard of Review

         Leave to amend is governed by Rule 15, "Amended and Supplemental Pleadings, " which generally conditions amendment on the court's leave or the opposing party's written consent.[12] Lacking a time limit or an outer bound on when amendment is permissible, the Rule instructs courts to "freely give leave [to amend] when justice so requires."[13]This liberal amendment regime helps effectuate the "general policy embodied in the Federal Rules favoring resolution of cases on their merits."[14]

         In determining whether leave to amend might reasonably be denied, courts are guided by the Foman factors, named for the Supreme Court's decision in Foman v. Davis, 371 U.S. 178 (1962). Denial of leave to amend can be based on undue delay, bad faith or dilatory motive on the part of the movant; repeated failure to cure deficiencies by amendments previously allowed; prejudice to the opposing party; and futility.[15] The Foman factors are not exhaustive, allowing a court to ground its decision, within reason, on consideration of additional equities, such as judicial economy/burden on the court[16] and the prejudice denying leave to amend would cause to the plaintiff.[17] All factors are not created equal, however, as "prejudice to the non-moving party is the touchstone for the denial of an amendment."[18]

         A decision on whether to permit amendment of the pleadings generally falls within the District Court's discretion. It follows that we review for abuse of that discretion, except where amendment is denied for legal reasons drawing de novo review (such as when the proposed amendment would fail to state a claim).[19] If we find an error in the District Court's reasoning, we exercise our own discretion in determining whether we will nevertheless affirm "if . . . the District Court's [remaining] findings would support denial of leave to amend."[20]

         While abuse of discretion is ordinarily a deferential standard of review, it has bite in this context; the District Court's discretion, circumscribed by the Rule 15's directive in favor of amendment, must be "exercised within the context of liberal pleading rules."[21] Moreover, leave to amend is not an all-or-nothing proposition. Relying on the Foman factors, courts can choose instead to impose reasonable conditions on the right to amend in lieu of a pure grant or denial. Specifically, a court "may use its discretion to impose conditions on the allowance of a proposed amendment as an appropriate means of balancing the interests of the party seeking the amendment and those of the party objecting to it, " such as by "narrow[ing] the scope of the amendment if it considers the request too broad."[22]

         One additional background consideration applies in civil rights cases like this one. In our Circuit, "district courts must offer amendment [in civil rights cases]-irrespective of whether it is requested-when dismissing a case for failure to state a claim unless doing so would be inequitable or futile."[23]By contrast, plaintiffs in "ordinary" civil litigation- commercial disputes, for instance-must take affirmative steps to obtain amendment in the face of dismissal.[24]

         B. Analysis

         Although the District Court gave reasons of its own when declining to set aside the Magistrate Judge's order, we are really reviewing the Magistrate Judge's exercise of discretion in entering the order, and not the District Court's deferential review of the same. Accordingly, we will focus our review on the Magistrate Judge's analysis of the Foman factors.

         1. Undue Delay

         The "undue delay" factor recognizes that a gap between when amendment becomes possible and when it is actually sought can, in certain circumstances, be grounds to deny leave to amend. While simple delay cannot justify denying leave to amend by itself, delay that is "undue"-a delay that is protracted and unjustified-can place a burden on the court or counterparty, or can indicate a lack of diligence sufficient to justify a discretionary denial of leave.[25]As there is "no presumptive period in which . . . delay becomes 'undue, '"[26] the "question of undue delay requires that we focus on the movant's reasons for not amending sooner" while "bearing in mind the liberal pleading philosophy of the federal rules."[27] "Following this principle, we have refused to overturn denials of motions for leave to amend where the moving party offered no cogent reason for the delay in seeking the amendment."[28]

         The Magistrate Judge broke down the delay in this case into two discrete periods. First, the Judge assessed the delay arising from the July 2013 "policy" discovery, which Mullin's counsel consciously chose not to use in an earlier amendment. Second, the Judge assessed the more-significant delay arising from the misplaced April 2013 discovery, which counsel was not aware of until February 2014.

         i) July 2013 Discovery

         Mullin's attorney argued that her reasons for declining to amend immediately upon receiving the July 2013 discovery were reasonable, and that the delay before she first brought the material to the Court's attention was thus not undue.[29] She explained that she received the discovery after the return date for the motions to dismiss, assumed the period for requesting amendment was closed, and further assumed that the Court would not reopen the record. Counsel also argued that amending was unnecessary. She believed that the SAC's description of various policies and procedures was enough to survive the motions to dismiss, and that the meaning of the various policies of procedures would become clearer after she had received additional discovery.

         The Magistrate Judge found these reasons to be unconvincing, explaining that the closing-of-the-record point was "difficult to understand, " as "[Mullin] has not refrained from seeking leave from the Court for various reasons."[30] The Magistrate Judge also thought that counsel's delay was impermissibly "tactical, " resulting in "waiting until the Motions to Dismiss were largely granted, and then asking for a 'do-over.'"[31] Deciding that this delay was not supported by a cogent reason, the Magistrate Judge deemed it "clearly undue."[32]

         We disagree in part with the Magistrate Judge's reasoning, and in particular with suggestion that counsel's "tactical" decision transformed the delay into one that was undue. While we have disdained a wait-and-see approach to amendment, our major cases doing so fall in the post-judgment posture discussed above.[33] More recently, we have cautioned against overreading the scope of some of those earlier cases.[34] Further, the decisions spurning a wait-and-see approach are "standard" civil disputes.[35] This, by contrast, is a civil rights case, with the attendant requirement in our case law that an opportunity to amend be presumed. In the ordinary course, a civil rights plaintiff would not expect a modest wait-and-see approach to constitute undue delay by itself-unless egregious or excessive, or if some other factor rendered the delay undue.

         Our normal civil rights rule is put to the test in this matter, however, given the sheer complexity of the proceedings, as well as the fact that Mullin was previously granted leave to amend.[36] It is certainly reasonable to think that there may be some situations where a civil rights plaintiff's pre-dismissal actions, or a court's informal testing of the merits of the pleading, might count against granting amendment. But this case does not present such a situation. For one, although Mullin amended twice before, the second amendment (leading to the SAC) can be viewed as a perfection of the first, partially unsuccessful amendment.[37]For another, her pleadings had never actually been formally evaluated by the District Court, and "the mere fact that a defendant files a motion to dismiss is not necessarily sufficient to put a plaintiff on notice that the court will find his complaint to be deficient."[38]

         Perhaps most important is that the SAC was informally tested on the merits before the motion to dismiss was resolved-and received a clean bill of health from the same Magistrate Judge, who opined that it passed muster under Twombly/Iqbal.[39] The Magistrate Judge's decision was, of course, not binding on the District Court, let alone on us. But it does suggest that Mullin's "tactical" approach to the dismissal cannot be fairly called dilatory or contumacious, in light of the ...

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