Case Information
IN THE UNITED STATES DISTRICT COUR FOR THE DISTRICT OF COLORADO Senior Judge R. Brooke Jackson Civil Action No. 1:20-cv-02516-RBJ-MDB
KHALFAN KHAMIS MOHAMED,
Plaintiff,
v.
JONES,
HUDDLESTON,
OSAGIE,
BRUSH,
ESPINOZA,
MILLER,
LT. MURTON,
LT. ARMIJO, and
UNITED STATES OF AMERICA,
Defendants. ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO AMEND
This matter is before the Court on Mr. Mohamed’s motion for leave to file a Third Amended Complaint. ECF No. 205. The motion is DENIED.
BACKGROUND
Plaintiff Khalfan Khamis Mohamed, an inmate at the United States Penitentiary Florence
ADMAX (ADX Florence), filed suit against eight BOP officials pursuant to
Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics
,
After reviewing defendants’ first and second motions to dismiss, then-Magistrate Judge Nina Y. Wang issued a 79-page recommendation, which I accepted and adopted on May 18, 2022. See ECF No. 103; ECF No. 120. Accordingly, I granted defendants’ motions to dismiss as to plaintiff’s First Amendment claim (claim 7) and as to the FTCA claims of negligent supervision and performance (claims 14 and 15), denied defendants’ motion to dismiss as to the FTCA battery claims (claims 11 through 13), and denied defendants’ motions to dismiss as to the Eighth Amendment claims (claims 1 through 6 and 8 through 10). See ECF No. 120 at 13.
At that time, I concluded a
Bivens
remedy was available for claims 1 through 6,
reasoning that there was “no meaningful difference” between the Eighth Amendment excessive
force and failure-to-intervene claims at issue here and the Eighth Amendment deliberate
indifference claim for which the Supreme Court provided a
Bivens
remedy in
Carlson v. Green
,
On June 8, 2022, the Supreme Court issued its decision in
Egbert v. Boule
,
Defendants then moved for reconsideration of the denial of their motion to dismiss counts 1 through 6, arguing that Egbert foreclosed the analysis on which I relied in finding that a Bivens remedy should be implied for plaintiff’s Eighth Amendment excessive force and failure-to- intervene claims. See ECF No. 128 at 1. On October 24, 2022 I concluded that defendants’ arguments under Egbert did not warrant the “extreme remedy” of reconsideration. See ECF No. 150 at 3. I reasoned that “ Egbert d[id] not vitiate the preceding decades of precedent,” and that it did not follow from Egbert ’s “recognition of the pervasive effects of the immigration context on a Fourth Amendment claim” that all future Bivens claims—particularly those vindicating other constitutional rights—would be foreclosed. See ECF No. 150 at 7–8. I was unpersuaded by defendants’ suggestion to extrapolate from Egbert that the Supreme Court had rendered Bivens a dead letter. I therefore denied reconsideration.
On December 22, 2022 defendants appealed the denials of their motion to dismiss and
motion to reconsider. ECF No. 156. On May 7, 2024 the Tenth Circuit dismissed the appeal
for lack of interlocutory appellate jurisdiction. ECF No. 173. During the pendency of that
appeal, the Tenth Circuit issued several other decisions interpreting
Egbert
and suggesting that
hailed from an “
ancien regime
” in which the Supreme Court had “routinely” and
improvidently “implied causes of action.”
See Rowland v. Matevousian
,
I agreed and concluded I was bound by Tenth Circuit precedent to hold that Mr.
Mohamed’s
Bivens
claims were no longer cognizable.
See
ECF No. 199 at 10. I acknowledged
that “[t]he analysis required by
Silva
[
v. United States
,
Nevertheless, I concluded that I was bound by precedent in this circuit unequivocally
holding that the BOP’s administrative grievance program constitutes an “independent reason[]”
foreclosing
Bivens
relief without inquiry into whether the case presents a new
Bivens
context.
ECF No. 199 at 7-8 (quoting
Silva
,
Mr. Mohamed sought reconsideration of the order granting judgment on the pleadings.
ECF No. 206. I denied that motion because Mr. Mohamed did not raise new arguments,
present new governing authority, or otherwise demonstrate that the previous decision was
erroneous. ECF No. 208 at 5 (quoting
Brumark Corp. v. Samson Res. Corp.
,
Now before the Court is Mr. Mohamed’s motion for leave to file a Third Amended Complaint. ECF No. 205. Mr. Mohamed describes that the proposed Third Amended Complaint “is identical to the previous/operative one,” ECF No. 64. ECF No. 205 at 1. He states that the proposed amendment “reallege[s] the previous[] allegations” but “limits his requests for relief to[] the injunction that would require the government . . . to treat his ankle[] and declaratory judgment that merely acknowledge[s] the violation of his rights.” ECF No. 205 at 1. The Court notes that the proposed Third Amended Complaint—attached to the motion for leave to amend— in fact also requests monetary damages of “2 million dollars for the three FTCA battery claims” and, “if applicable[,] nominal [and] punitive damages.” ECF No. 205 at 30. [3]
LEGAL STANDARD
Mr. Mohamed, proceeding
pro se
, appears to seek leave to amend under Rule 15(a) of
the Federal Rules of Civil Procedure. “Federal Rule of Civil Procedure 15(a) provides that, after
a responsive pleading has been served, a party may amend its pleading ‘only by leave of court or
by written consent of the adverse party.’”
Mengert v. United States
,
“A district court may deny leave to amend upon ‘a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.’” Id . (quoting Frank v. U.S. West, proposed amendment seeks to add new official-capacity claims for excessive force and failure to intervene. ECF No. 209 at 7 (comparing ECF No. 64 at 3 n.1, in which plaintiff described “[t]he rest of the individual staff-defendants [other than Jones, Huddleston, and Osagie] . . . are each sued on individual capacity” with ECF No. 205 at 9 n.1, in which plaintiff stated that “each and all defendants sued under both: individual and official capacities”). The Court is not inclined to infer from this apparent difference that Mr. Mohamed now seeks to add new section 1983 claims against each defendant, given Mr. Mohamed’s statement that he was not seeking to add any new claims in the proposed amendment. ECF No. 205 at 1. Mr. Mohamed’s stated intent suggests the change in wording may not have been intentional. In any event, as described below, such a request would be untimely. Courts are to construe pro se litigants’ filings “liberally.” See Hall v. Bellmon , 935 F.2d
1106, 1110 (10th Cir. 1991);
see also Garrett v. Selby Connor Maddux & Janer
,
Inc.
,
In addition, the Tenth Circuit has explained that “a district court may withhold leave to
amend if the amendment would be futile.”
Chilcoat v. San Juan Cnty.
,
ANALYSIS
Mr. Mohamed requests leave to file the proposed Third Amended Complaint. The proposed amendment “reallege[s] the previous[] allegations” from the operative complaint, including the Bivens claims against the individual officers and the FTCA claims against the United States. ECF No. 205 at 1. Like the operative complaint, the proposed amendment requests an “injunction that would require the government . . . to treat his ankle,” a “declaratory judgment that merely acknowledge[s] the violation of his rights,” monetary damages of “2 million dollars for the three FTCA battery claims” and, “if applicable[,] nominal [and] punitive damages.” See ECF No. 205 at 1, 30. [6]
In effect, Mr. Mohamed appears to request the proposed amendment to add back the claims from the Second Amended Complaint that were resolved in defendants’ favor in the order granting judgment on the pleadings, ECF No. 199. He also apparently seeks to re- assert his requests for injunctive and declaratory relief. Because there is no reason that Mr. Mohamed could not have presented the content of the proposed Third Amended Complaint in the earlier amendment, and because these two grounds for a proposed amendment are futile, the Court denies the motion for leave to amend. The operative complaint contains sufficient allegations for Mr. Mohamed to pursue the remaining FTCA claims against the United States, which provide the possible remedy of money damages. [7]
1. Untimeliness
Defendants maintain that the motion for leave to file a Third Amended Complaint should be denied because it is untimely. ECF No. 209 at 1. They note that “[t]his case has been pending for approximately four and a half years,” that Mr. Mohamed “has previously amended his complaint twice,” and that he now “provides no reason why he could not have included [any] additional allegations or claims in the three previous versions of the complaint.” ECF No. 209 at 1–2. Mr. Mohamed appears to argue that the motion for leave to amend here is not untimely because the Court ruled recently that the defendants’ motion for judgment on the pleadings was not untimely. ECF No. 205 at 1 (citing ECF No. 199 at 5) (concluding that “defendants ha[d] not engaged in excessive delay” in filing their Rule 12(c) motion and therefore finding “no basis to decline to consider the motion”).
But the motion here under Rule 15(a)(2) is governed by different standards regarding
timeliness than was the motion under Rule 12(c). As the Court observed in its order on the
motion for judgment on the pleadings, courts may “refuse to consider Rule 12(c) motions filed
after discovery has closed and dispositive motions have been filed.” ECF No. 199 at 4 (citing,
e.g.,
S.E.C. v. Wolfson
,
The Court is not convinced that the Third Amended Complaint differs from the operative complaint in any meaningful way. But to the extent that—as defendants believe— Mr. Mohamed seeks to add new constitutional claims, there is no reason he could not have presented those claims in an earlier version of the complaint. There has been no change in law that would affect the viability of section 1983 claims against the officers, and Mr. Mohamed does not suggest that the limited discovery that has so far taken place has created new allegations or warranted other factual amendments to his prior allegations. Furthermore, to the extent that the proposed amendment seeks to add back the previously asserted Bivens claims, there has been no change in law that warrants the proposed amendment. The only changes in law that have occurred during the pendency of this lawsuit have resulted in the grant of judgment on the pleadings for defendants on the nine Bivens claims.
Because there is no indication that Mr. Mohamed has “learn[ed] new information through
discovery” or that “the underlying law has changed” to warrant the proposed amendment, Mr.
Mohamed has not shown good cause for a delayed amendment under Rule 15(a)(2).
See
Gorsuch
,
2. Futility
Futility is a separate ground to deny leave to amend here. First, to the extent that the
proposed amendment would add back the nine
Bivens
claims resolved in ECF No. 199, the
amendment would be futile because those claims “‘as amended, . . . would be subject to
dismissal.’”
Johnson
,
Likewise, to the extent that Mr. Mohamed seeks to re-assert a request for declaratory and
injunctive relief in the proposed Third Amended Complaint, an amendment to that effect would
also be futile. The only claims remaining are the FTCA claims against the United States.
Though the FTCA permits recovery of damages, it does not provide for declaratory or injunctive
relief.
See Estate of Trentadue ex rel. Aguilar v. United States
,
In short, Mr. Mohamed’s proposed amended complaint would be futile because the claims he seeks to add are not cognizable, and the declaratory and injunctive relief he seeks as remedies are unavailable under the FTCA. The Court has already ruled on the viability of the Bivens claims and Mr. Mohamed’s request to reconsider. To essentially re -reconsider those prior rulings would not be a useful exercise. Though injunctive and other equitable relief are not available as potential remedies, Mr. Mohamed may still pursue money damages under the remaining FTCA claims (as set forth in the operative complaint), or he may negotiate other terms as part of a settlement agreement.
ORDER
For the reasons above, the motion for leave to amend, ECF No. 205, is DENIED. The parties are directed to confer and then to contact Chambers to obtain a trial date. The Court recommends that before doing so, they explore whether a reasonable settlement ending this case might be possible that this point.
DATED this 14th day of February, 2025.
BY THE COURT: ___________________________________ R. Brooke Jackson Senior United States District Judge
Notes
[1] They requested judgment on the pleadings as to counts 1 through 10, but claim 7 had already been dismissed. See ECF No. 120 at 13. I therefore treated that motion as requesting judgment on the pleadings only as to the Eighth Amendment claims that then remained. Defendants did not challenge Mr. Mohamed’s FTCA claim against the United States; they challenged only the claims against individual officers for damages and injunctive relief. See ECF No. 182 at 2 (arguing that “[d]efendants are entitled to judgment on the pleadings for Plaintiff’s claims for excessive force, failure to intervene, and deliberate indifference (Claims 1– 6 and 8–10)”).
[2] This order left intact only the FTCA claims (claims 11 through 13) against the United States.
[3] For purposes of this analysis, the Court gives effect to the relief requested in the proposed Third Amended Complaint, ECF No. 205 at 30, and otherwise accepts Mr. Mohamed’s characterization of the amendments he seeks. Defendants believe that Mr. Mohamed in the
[5] Judgment on the pleadings on these claims was granted in favor of defendants in January 2025, ECF No. 199, and reconsideration was recently denied, ECF No. 208.
[6] The Court interprets Mr. Mohamed’s proposed complaint liberally and thus gives effect to the relief requested at page 30 of the proposed amended complaint, which includes a request for money damages. ECF No. 205 at 30. But Mr. Mohamed describes the proposed amendment as “limit[ing] his requests for relief to[] the injunction that would require the government . . . to treat his ankle[] and declaratory judgment that merely acknowledge[s] the violation of his rights.” ECF No. 205 at 1. It seems that perhaps providing plaintiff the medical care he seeks would offer an opportunity to settle this dispute.
[7] In addition, the parties remain free to include medical care as a term of settlement if they choose to do so.