United States District Court, E.D. Kentucky, Southern Division, London
DUSTIN M. WILSON, Plaintiff,
HARVEY SHEARER, Defendant.
RECOMMENDED DISPOSITION 
A. Ingram United States Magistrate Judge
matter is before the Court on pro se plaintiff
Dustin M. Wilson's motion to extend the scheduling order
and motion for leave to file an amended complaint. D.E. 23;
D.E. 23-1. For the following reasons, the Court
RECOMMENDS that Wilson's motion to
extend the scheduling order be GRANTED and
that his motion for leave to file an amended complaint be
GRANTED in part and DENIED
original complaint, which was docketed on February 20, 2018,
Wilson alleged that his constitutional rights were violated
during his incarceration at the Wayne County
because he was prohibited from practicing his religion and
because he was denied medical attention and
treatment. D.E. 1 at 5. Wilson sought to bring his
claims against Harvey Shearer, the jailer at the Wayne County
Detention Center, in both his official and individual
capacities, and Southern Health Partners, the health
providers at the jail. D.E. 10 at 2.
preliminary review, Chief Judge Caldwell dismissed
Wilson's denial of medical care claim without prejudice
“[b]ecause Wilson's allegations fail[ed] to state a
claim for inadequate medical care against any of the named
defendants.” Id. at 3-4. Next, because
“Wilson ha[d] not alleged that Southern Health Partners
had any involvement with the infringement on his religious
rights, ” Chief Judge Caldwell dismissed that claim
against Southern Health Partners. Id. at 4. However,
Chief Judge Caldwell ordered Shearer to respond to
Wilson's claim of infringement of his constitutional
religious rights. Id. at 5.
Chief Judge Caldwell referred this case to the undersigned
“to conduct all further pretrial proceedings, including
preparing proposed findings of fact and recommendations on
any dispositive motions.” D.E. 16. On November 26,
2018, the Clerk of Court docketed a filing by Wilson that the
Court has construed as a motion to extend the scheduling
order and as a motion for leave to amend his complaint. D.E.
23; D.E. 23-1; D.E. 24. Under the scheduling order in this
case, the pretrial discovery deadline was December 6, 2018,
and the dispositive motions deadline is January 7, 2019. D.E.
Court will first address Wilson's request that the Court
grant him leave to amend his complaint. In his proposed
amended complaint, Wilson reasserts Counts 1 and 2 of his
original complaint regarding violation of his religious
rights and regarding his denial of adequate medical care.
D.E. 23-1. In Count 3, Wilson states that he “would
like to add” that, on many occasions, “Mr.
Shearer was informed by [Wilson] that the medical staff
wasn't doing [their] job correctly, ” that Wilson
was in pain over the lump in his side not being treated, and
that Wilson needed his prescribed medications. Id.
at 2. In Count 4, Wilson claims that, at least once, Shearer
“was present during a sick call” and that, at
that time, “Shearer was made aware” that
Wilson's needs were not being met and that Shearer was
asked “to get some things done.” Id. at
3. Wilson alleges that Shearer replied that he would
“check in to it, ” but that nothing was done.
second Count 4,  Wilson asks the Court “to consider
suing (making a claim) against [t]he nurses over Souther[n]
Health Partners, ” whom Wilson claims denied him
mental-health treatment and needed referrals. Id.
Wilson states that he is “not familiar with the nurses
real or full legal name employed during Aug. 22, 2017 through
Nov. 28[, ] 2017.” Id. In paragraph 5, Wilson
responds to a defense offered by Shearer in his answer
regarding whether Wilson exhausted his administrative
remedies. Id. at 4.
exact relief requested by Wilson in paragraph 6 is not
immediately apparent. See Id. at 4-5. In that
paragraph, Wilson states that he filed a grievance that was
not returned. Id. at 5. Wilson also discusses
“complaint forms regarding any nurses in the state of
Kentucky” and claims that Shearer never informed Wilson
of his “full rights to inform the Kentucky Board of
Nurses of their grievance complaint regarding nurses at
[Shearer's] jail.” Id. at 5-6. Here,
Wilson claims that Shearer should have an obligation to
provide information to inmates about their administrative
remedies regarding health care at Shearer's jail.
Id. at 6. In paragraph 6, Wilson also seeks to state
a claim against the Wayne County Fiscal Court. Id.
at 5. Finally, Wilson states that he can prove his inadequate
medical care claim through expert testimony. Id. at
response to Wilson's motion for leave to amend his
complaint, Shearer argues that Wilson states no new cause of
action in his proposed amended complaint, but instead
“merely lists factual claims which expound on his
previous allegations.” D.E. 25 at 2. Shearer further
argues that “[n]one of the plaintiff's assertions
in his ‘amended complaint' put forth any
information which was not known, or could not have been
known, at the time of filing his original complaint. As such,
his ‘amended complaint' is unnecessary, dilatory in
nature, and would serve only to cause undue delay in this
matter.” Id. Notably, although Shearer states
that Federal Rule of Civil Procedure 15 and “applicable
caselaw” direct that leave to amend should not be
granted, Shearer has not cited a single case to the Court in
support of his position. See Id. at
Wilson's motion was filed more than twenty-one days after
Shearer filed his answer, Wilson may not amend his complaint
as a matter of course. Fed.R.Civ.P. 15(a)(1)(B). However, he
may amend his complaint with either the opposing party's
written consent or the Court's leave. Fed.R.Civ.P.
15(a)(2). Importantly, Rule 15(a)(2) instructs the Court to
“freely give leave when justice so requires.”
Id. To determine whether amendment is appropriate,
the Court may consider several elements: “Undue delay
in filing, lack of notice to the opposing party, bad faith by
the moving party, repeated failure to cure deficiencies by
previous amendments, undue prejudice to the opposing party,
and futility of amendment are all factors which may affect
the decision.” Hageman v. Signal L.P. Gas,
Inc., 486 F.2d 479, 484 (6th Cir. 1973) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)).
Chief Judge Caldwell determined that Wilson failed to state a
claim against Shearer regarding his claim of inadequate
medical care because Wilson had not included any facts that
Shearer acted personally in denying Wilson appropriate
medical treatment. D.E. 10 at 3. Now, Wilson's
allegations can be read to state a claim that Shearer was
deliberately indifferent to his serious medical needs because
he was informed of Wilson's lack of access to medical
care and that he did nothing to cure the problems. Such
allegations cure the deficiencies identified by Chief Judge
Caldwell's previous order. See Id. Thus, the
Court will recommend that Wilson be permitted to amend his
complaint to state a claim regarding inadequate medical care
Wilson's allegations against the jail medical staff
“have at least an arguable basis in law and are not
frivolous.” See McCallum v. Gilless, 38
Fed.Appx. 213, 215 (6th Cir. 2002). “Moreover,
[Wilson's] failure to identify these defendants by name
did not make his complaint frivolous.” Id.
“District courts have a responsibility to construe pro
se complaints liberally and to allow ample opportunity for
amending the complaint when it appears that the pro se
litigant would be able to state a meritorious claim.”
Id. Because Wilson has sufficiently stated a claim
that the nurses, including “Nurse Amber,
” denied him appropriate medical care,
Wilson should be permitted to amend as to that claim.
Wilson is proceeding in forma pauperis, the United
States Marshals Service (“USMS”) will serve the
summons and complaint on the one defendant for whom Wilson
has provided sufficient identifying information-Nurse
Amber-on Wilson's behalf. See Fed. R. Civ. P.
4(c)(3); 28 U.S.C. § 1915(d). The Court notes that, by
not identifying any other nurse effectively, Wilson's
inadequate medical care claim is brought against “Jane
Doe” defendants. When service of process by federal
marshals is executed pursuant to Federal Rule of Civil
Procedure 4(c)(3), the plaintiff bears the initial
responsibility of identifying the defendants with sufficient
particularity for the marshals to attempt service. See
Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996).
posture, Wilson should be advised of Rule 4(m) of the Federal
Rules of Civil ...