United States District Court, W.D. Louisiana, Lake Charles Division
DERLON K. CRAIN D.O.C. # 91405
SHERIFF TONY MANCUSO ET AL.
KATHLEEN KAY MAGISTRATE JUDGE
the court are a Motion for Subpoenas and Motion to Amend
[doc. 130], Motion to Compel Medical Records [doc. 132], and
Motion to Amend/Proceed In Forma Pauperis [doc. 134], filed
by plaintiff Derlon K. Crain, who was an inmate in the
custody of the Louisiana Department of Public Safety and
Corrections when he initiated this suit. Defendants oppose
all three motions. Docs. 131, 135, 136. Crain has also filed
replies in support of his Motion to Amend/Plead In Forma
Pauperis [doc. 134] and his Motion to Compel Medical Records
[doc. 132]. Docs. 138, 140.
filed this suit under 42 U.S.C. § 1983 in August 2015.
Doc. 1. In his amended complaint, he alleges that he was
exposed to and contracted tuberculosis while an inmate at
Calcasieu Correctional Center, as a result of defendants'
failure to adequately screen inmates and segregate those who
are infectious. Doc. 8. Through his current set of motions he
seeks to add new defendants to the suit and compel production
of his medical records.
Motions to Amend, Proceed In Forma Pauperis, and Issue
his Motion for Subpoenas and Motion to Amend [doc. 130] and
Motion to Amend/Plead In Forma Pauperis [doc. 134] Crain
seeks to add new defendants, Warden Neugent and Warden
Lavern. He alleges that he intended to name these defendants
instead of Warden Bordelon and Warden Creed, who were
dismissed from this suit on September 19, 2017, for failure
to effect service. Doc. 130, p. 1; see docs. 86, 84.
He also requests that subpoenas be issued to Neugent and
Lavern, though he does not specify what he seeks through
these subpoenas. Doc. 130, p. 1. Crain contends, generally,
that his incarceration prevented him from learning the proper
names of the proposed defendants. Doc. 138, p. 1.
time for amending his pleadings as a matter of course has
passed under Federal Rule of Civil Procedure 15(a), and
defendants oppose the motions for leave to amend.
Accordingly, the complaint may only be amended with leave of
court. Fed.R.Civ.P. 15(a)(2). “The court should freely
give leave [to amend] when justice so requires.”
Id. The court may consider a variety of factors,
“including undue delay, bad faith or dilatory motive on
the part of the movant, repeated failures to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, and futility of the amendment.” Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.
2005). However, Rule 15(a) still provides a “strong
presumption in favor of granting leave to amend” and
the court must do so unless there is a substantial reason to
deny the motion. Fin. Acquisition Partners, LP v.
Blackwell, 440 F.3d 278, 291 (5th Cir. 2006);
Dussuoy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598
(5th Cir. 1981).
defendants point out, this suit is nearly three years old.
Trial is set for December 3, 2018, and the dispositive motion
deadline is now less than two months away. Doc. 87. Crain
provides no basis for his belief that Neugent and Lavern are
liable to him other than his discovery that they were
employed at Calcasieu Correctional Center when his alleged
tuberculosis exposure occurred. Furthermore, his general
assertion that his incarceration prevented him from
uncovering these individuals' identities is belied by the
fact that the parties have been engaging in discovery for
over eighteen months now. See doc. 65; doc. 65, att.
1 (Defendants' interrogatories and Crain's responses,
filed into the record by Crain). Crain's proposed
amendments appear futile and he has not shown adequate excuse
for his lengthy delay in discovering any additional. They
should therefore be denied.
Crain does not specify what information he seeks from Neugent
and Lavern through his subpoenas, this motion should likewise
be denied. Finally, we turn to the motion to proceed in forma
pauperis. Crain has not been granted leave to amend his
petition. Even if leave had been given, Crain is already
proceeding IFP in this matter and does not require renewed
permission upon amendment of his petition. Accordingly, that
motion is denied as moot.