Joseph Little v. Erik Tall CV-01-276-B 03/25/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

Joseph T. Little

v. Civil No. 01-51-BS (ME) Civil No. 01-276-B (NH) Opinion No.

Erik Tall et a l .

MEMORANDUM AND ORDER

This civil rights action arises out of plaintiff Joe T.

Little's claims of mistreatment by law enforcement officers, jail

officers, and jail medical personnel in connection with his July

5, 2000 arrest and incarceration. This memorandum and order

responds to a number of pending pretrial motions.

1. Motions to Amend the Complaint and for Leave to Amend Complaint filed by Plaintiff

Plaintiff has filed a motion to amend his complaint

[document no. 20] and two motions seeking leave to amend his

complaint [document nos. 24 and 25]. In his motion to amend his

complaint, plaintiff seeks to specify previously unnamed

defendants and to add two factual allegations; in his two motions

for leave to amend his complaint, plaintiff seeks to list

defendant Allied Resources for Correctional Health, Inc. ("ARCH") as a defendant to Count IV and to add an allegation that the

conduct of ARCH's employees (which is complained of in Count IV)

was the result of negligent training and supervision on the part

of ARCH. ARCH objects to all three motions.

I deny the two motions for leave to amend the complaint.

First, plaintiff filed these two motions for leave to amend well

after the November 30, 2001 deadline for joinder of additional

parties/amendments to the pleadings established in the amended

pretrial order [document no. 18]. Yet the motions make no effort

to provide an explanation for their untimeliness. Second,

plaintiff does not dispute ARCH's assertion that, months prior to

the November 30, 2001 deadline, he was in possession of the

transcripts of telephone calls on which he now bases his request

to add a negligent training and supervision claim. Third, and

most importantly, the transcripts contain little (if any)

probative evidence that ARCH violated plaintiff's constitutional

rights by inadequately training and/or supervising Alfred B.

Cichon and Debra McCann. Consequently, plaintiff has provided me

with no basis for concluding that justice requires that he be

permitted to amend his complaint beyond the date set by the

- 2 - amended pretrial order.1

On the other hand, I grant plaintiff's motion to amend the

complaint [document no. 20]. ARCH is the only party to object to

this motion. But its objection is based upon the presupposition

that it is named as a defendant to Count IV of plaintiff's

complaint. As I explain below, ARCH's presupposition is

mistaken; Count IV does not name ARCH as a party in either form

or substance. I thus have no grounds for denying the motion.

Plaintiff should file his amended complaint on or before Friday,

April 12, 2 0 02.

2. Motions to Dismiss Filed by Defendant ARCH

ARCH has filed three motions to dismiss. Two of the motions

[document nos. 10 and 23] seek dismissal of Count IV of the

complaint insofar as it pertains to ARCH; a third [document no.

xMy denial of plaintiff's motions for leave to amend is without prejudice to plaintiff filing another such motion should he uncover a basis for adding ARCH as a defendant to one or more of his federal claims. But if plaintiff brings such a motion, he should (1) attach the proposed amended filing to the motion to amend, (2) identify in the motion or a supporting memorandum any new factual allegations and legal claims in the proposed amended pleading, and (3) explain why the new allegations and claims were not included in the original filing and why the amendment should be allowed notwithstanding its untimeliness under the amended pretrial order. C f . Local Rule 15.1, United States District Court for the District of New Hampshire.

- 3 - 6] seeks dismissal of both Count Vi's negligence claim (insofar

as it pertains to ARCH) and a cross-claim for indemnification

based on an indemnification provision in a contract for medical

services between ARCH and Penobscot County and brought against

ARCH by Penobscot County and certain of its employees.

Subsumed within ARCH's second motion to dismiss Count IV is

an argument that Count IV does not, in fact, state a claim under

against ARCH; it only states a claim against

certain ARCH employees. I agree. Count IV neither purports to

state a § 1983 claim against ARCH nor does so in effect. There

is no reason for me to dismiss a claim that has not been brought.

Accordingly, I deny ARCH's two motions to dismiss Count IV.

ARCH's motion to dismiss both the negligence claim in Count

VI (insofar as it pertains to ARCH) and the cross-claim for

indemnification is premised on an argument that these claims have

not been presented to a pre-litigation screening panel, as is

required by the Maine Health Security Act ("MHSA").2 Plaintiff

2The MHSA governs "action[s] for damages against [a] health care provider . . . based on tort or breach of contract . . . arising out of the provision or failure to provide health care services."

(6). As explained by Judge Brody, the Act requires that such actions be

- 4 - does not dispute that the MHSA applies and that he did not comply

with its mandatory pre-litigation screening panel requirements;

in fact, he has not filed an objection to ARCH's motion.

Penobscot County and its employees object on the ground that the

MHSA does not apply to its cross-claim.

In a soundly reasoned opinion. Judge Brody recently

concluded that a plaintiff must satisfy the MHSA's mandatory pre­

litigation screening panel requirements before pressing a

supplemental negligence claim against a health care provider in

an action based on federal question jurisdiction. See Hewett v.

Inland Hospital,

(D. Me. 1999). Because

the plaintiff in Hewett had not yet complied with those

requirements. Judge Brody declined to exercise jurisdiction over

the supplemental negligence claim so as to avoid a delay in

commenced by filing a written notice of claim with the court and serving it on the person accused of professional negligence. See

(1) . . . . Unless waived by the defendant, the Act requires that a plaintiff's claim be evaluated by a screening panel before it is allowed to proceed to litigation. See i d . at §[§] 2851-59; see also Chorosczv v. Tso,

, 805 n.l (Me. 1994) (explaining the statutory scheme).

Ferris v. County of Kennebec.

(D. Me. 1999).

- 5 - resolving her federal claim. See i d . at 87-88; see also Ferris,

(declining, on similar grounds, to exercise

jurisdiction over a supplemental negligence claim not yet

presented to a pre-litigation screening panel).

I agree that plaintiff is required to comply with the

procedural requirements of the MHSA, and that he has not yet done

so. Following Judge Brody's lead, I decline to exercise

supplemental jurisdiction over plaintiff's negligence claim

against ARCH so as to avoid delay in resolving plaintiff's

remaining claims. See

(c) (4) .3 Also, because

the balance of Count VI - plaintiff's negligence claims against

Penobscot County and its employees - is inextricably intertwined

with the negligence claim against ARCH and should be pressed in

the same proceeding, I decline to exercise supplemental

jurisdiction over the entirety of Count VI. See i d . Finally,

3My decision not to exercise supplemental jurisdiction over plaintiff's negligence claim against ARCH means that ARCH is no longer a party to this action and does not face potential liability in this action. Consequently, I decline to exercise supplemental jurisdiction over ARCH's cross-claim for contribution and/or indemnity against Penobscot County and certain of its employees. ARCH's cross-claim should be pressed in the same proceeding as Penobscot County's cross-claim and the underlying negligence claims to which these cross-claims pertain. See infra.

- 6 - because the cross-claim of Penobscot County and its employees

seeks indemnification for liabilities incurred by cross-claimants

as a result of ARCH's conduct, it can pertain only to plaintiff's

negligence claim, and not to his constitutional claim, against

the County and its employees. See City of Canton v. Harris,

(1989) (emphasizing that a state actor is only

liable under

for its own unconstitutional

conduct and that " [r 1espondeat superior or vicarious liability

will not attach under § 1983") (citing Monell v. New York City

Dept, of Social Services,

(1978)). I

therefore decline to exercise supplemental jurisdiction over this

cross-claim, which should be pressed in the same proceeding as

the negligence claim. See supra note 3.

In sum, I deny plaintiff's motions for leave to file an

amended complaint [document nos. 24 and 25], but grant

plaintiff's motion to amend his complaint [document no. 20].

Plaintiff should file his amended complaint on or before Friday,

April 12, 2002. I also deny ARCH's two motions to dismiss Count

IV of the complaint [document nos. 10 and 23] because Count IV

neither purports to state a claim against ARCH nor does so in

effect. Finally, I deny ARCH's motion to dismiss plaintiff's

- 7 - negligence claim and the cross-claim of Penobscot County and

certain of its employees [document no. 6] insofar as the motion

seeks a dismissal of these claims with prejudice. But for the

reasons set forth above, I decline to exercise supplemental

jurisdiction over these claims, the balance of Count VI of the

complaint, and ARCH's cross-claim against Penobscot County and

certain of its employees.

SO ORDERED.

Paul Barbadoro, Chief Judge United States District Court, DNH Sitting by designation

March 25, 2002

cc: Gisele M. Nadeau, Esq. John P. Lucy, Esq. Michael E. Saucier, Esq. Michael J. Schmidt, Esq. Diane Sleek, Esq. Steven J. Mogul, Esq.