                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0837n.06

                                           No. 12-1644

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
BOBBIE A. MAXWELL, JR.,                              )                      Sep 19, 2013
                                                     )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
CORRECTIONAL MEDICAL SERVICES,                       )       COURT FOR THE WESTERN
INC., et al.,                                        )       DISTRICT OF MICHIGAN
                                                     )
       Defendants-Appellees.                         )
                                                     )



Before: BOGGS and WHITE, Circuit Judges, and McCALLA, District Judge.*

       JON P. McCALLA, District Judge. This appeal was brought by Bobbie A. Maxwell, Jr.,

while an inmate at the Florence Crane Correctional Facility, Michigan Department of Corrections.

Maxwell filed a complaint in the United States District Court for the Western District of Michigan,

pursuant to 42 U.S.C. § 1983, claiming that private contractors working for the Michigan

Department of Corrections violated his Eighth Amendment right against deliberate indifference to

his serious medical needs due to denial of hip-replacement surgery and adequate pain medication.

Ultimately, all of Maxwell’s claims were dismissed either on motions to dismiss or motions for

summary judgment. Maxwell appeals the district court’s dismissal of his claim against Dr. Keith

W. Ivens for denial of hip-replacement surgery in 2007 and his claim against Dr. Bency Mathai for

       *
       The Honorable Jon P. McCalla, Chief United States District Judge for the Western District
of Tennessee, sitting by designation.
No. 12-1644
Maxwell v. Corr. Med. Servs.

denial of pain medication. Maxwell also appeals the district court’s denial of his two motions to

amend his complaint.

        We REVERSE the district court’s decision regarding Appellant’s claim against Dr. Ivens,

and REMAND that claim to the district court for consideration on the merits. We AFFIRM the

district court’s decision regarding Appellant’s claim against Dr. Mathai and the district court’s denial

of Appellant’s two motions to amend his complaint.

                                         I. BACKGROUND

        Plaintiff-Appellant Bobbie A. Maxwell, Jr. (“Appellant” or “Maxwell”), developed pain in

both hips during a term of incarceration with the Michigan Department of Corrections (“MDOC”)

that ended in 2003. After being released in 2003, Appellant consulted a private physician, Dr. Boon

Cho Chang (“Dr. Chang”), who recommended surgery after therapy proved ineffective. While Dr.

Chang was looking for a specialist to do Appellant’s hip surgery, Appellant was again incarcerated

in July of 2005. While incarcerated, in “August, 2005, [Appellant] was diagnosed with moderately

advanced bilateral hip degenerative changes,” and on “November 14, 2007, [Appellant] was

diagnosed with bilateral avasular [sic] necrosis of the hips.” (R. 1 ¶ 14.) The latter term of

incarceration ended during the course of this appeal.

        Until April 1, 2009, Defendant-Appellee Correctional Medical Services, Inc. (“Appellee

CMS” or “CMS”), a private corporation, was under contract with the MDOC to provide medical

services to MDOC inmates. Defendant-Appellee Dr. Keith W. Ivens (“Appellee Ivens” or “Dr.

Ivens”) was an employee of CMS until December 14, 2007. Defendant-Appellee Dr. Bency Mathai

(“Appellee Mathai” or “Dr. Mathai”) was also an employee of CMS. Since April 1, 2009,

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Maxwell v. Corr. Med. Servs.

Defendant-Appellee Prison Health Services, Inc. (“Appellee PHS” or “PHS”), a private corporation,

has been under contract with the MDOC to provide medical services to MDOC inmates. The Pain

Management Committee is a three-member body and part of the MDOC.

       On December 27, 2008, Appellant filed the grievance relevant to this appeal (the

“Grievance”). On the Prisoner/Parolee Grievance Form, where the grievant is directed to “[s]tate

[the] problem clearly,” Appellant wrote: “See: Attached Grievance Statement. In the form of:

Administrative Notice. By: Affidavit       2 pages.” In the Administrative Notice attached to the

Prisoner/Parolee Grievance Form, Appellant stated, in relevant part, that:

       1. On December 23, 2008, I received verbal confirmation from Sandra K. Powell,
       R.N., that my request for Special Accomodation [sic], Pain Medication and Hip
       Replacement surgery forwarded by Hope S. Heebsh-P.A. to C.M.S/U.ofM. [sic] was
       “Denied” on 10-22-2008, by Corrections Medical Services/U. of M.
       ....

       3. Affiant was “ [sic] seen by Orthopedic Surgery (Dr. Ikrom) who recomended [sic]
       referral to U. of M. or St. Joseph for Bilateral Hip Replacement, [sic] This request
       was 1st. made on 11-14-2007, again on 8-30-2008, by Dr. Darrell L. Brady-M.D.,
       and again by P.A. Hope S. Heebsh on 10-2-2008, with all requests being DENIED.
       ....

       5. Correctional Medical Services Staff; Dr. Mathi [sic], and Senior Regional Medical
       Director, Craig Hutchinson, M.S. are allowing Affiant MAXWELL # 240605 to
       suffer “ . . . Pain needlessly when relief is readily available . . .” [See: Borretti v.
       Wiscomb, 930 F 2d 1150, [sic] (6th Cir. 1991)].

       6. C.M.S. Staff demonstrated “Deliberate Indifference” to My [sic] medical needs
       going back to November, 2007, when Dr. Ivens refused to authorize my Hip
       Replacement Operation.
       ....


       8. There is NO legitimate reason to deny Affiant ‘Solutional Remedy’ i.e. Surgery,
       Effective Medication, Injections to assist in alleviation of Affiant’s [sic] current

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Maxwell v. Corr. Med. Servs.

       infliction of unnecessary suffering upon Affiant by failure to treat medical needs,
       which boils down to ‘Crule [sic] and Unusual Punishment’ and C.M.S. being
       inconsistant [sic] with contemporary standards of decency, and unnecessary [sic]
       wanton infliction of pain, In [sic] violation of the Eigth [sic] Amendment, U.S.
       Constitution. [See: Estelle v. Gamble, 429 U.S. 1331; 97 S ct. [sic] 285; 50 L Ed.
       2nd 273 (1976)].

(R. 11-2 at PID 159 60.)



       On March 27, 2009, the Grievance was denied after being pursued through all three stages

of the grievance process. The final denial of the Grievance stated:

       Grievant alleges he is being denied hip surgery and pain relief associated with his
       hips.

       All relevant information has been reviewed within the electronic medical record.
       Grievant has had several evaluations, diagnostic testing, x-rays, and specialty
       consults requested by the Medical Practitioner. Grievant also currently has a
       treatment plan in place and a re-evaluation has been submitted to the Pain
       Management Committee. Denial of treatment is not supported by the record.
       Grievant’s request for hip replacement surgery is not medically indicated at this time.
       Step I and Step II respondents are both affirmed.

       Grievance appeal denied.

(R. 11-2 at PID 221.)

       On April 26, 2010, Appellant filed the instant complaint. Pursuant to 42 U.S.C. § 1983,

Appellant sought injunctive relief and damages because his Eighth Amendment rights had been

violated due to “deliberate indifference of [his] medical needs.” As relevant to this appeal, Appellant

made the following allegations: that, in November 2007, Dr. Ivens denied a recommendation that

Appellant receive bilateral hip-replacement surgery because Appellant’s “[h]ip problems [are] from

pre-existing GSW (gunshot wounds) and other trauma”; that Dr. Mathai denied a request from a

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Maxwell v. Corr. Med. Servs.

physician’s assistant that Appellant receive an MRI examination; and that “CMS and PHS are

vicariously liable for the actions of their employees.”

        On July 2, 2010, Appellees Ivens, Mathai, and CMS filed a motion to dismiss, and on July

7, 2010, Appellee PHS filed a motion to dismiss. On January 18, 2011, the magistrate judge

recommended that the claim against Dr. Ivens regarding Dr. Ivens’s 2007 denial of Appellant’s hip-

replacement surgery be dismissed for failure to exhaust administrative remedies; that Appellant

stated a claim against Dr. Mathai only for a denial of a recommended MRI examination, which

should be dismissed for failure to exhaust administrative remedies; and that the claims against CMS

and PHS be dismissed for failure to state a claim.

        On March 16, 2011, Appellant filed a motion for leave to file an amended complaint (the

“First Motion to Amend”). Appellant requested “leave to file an amended complaint as to [CMS]

and [PHS] to specifically allege the polices [sic], practices of [sic] customs of each of those

defendants.” Appellant attached his proposed Amended Complaint (the “First Proposed Amended

Complaint”) to the First Motion to Amend.

        On April 13, 2011, and April 15, 2011, the district court issued orders adopting the

magistrate judge’s recommendations and denying Appellant’s First Motion to Amend. Regarding

the First Motion to Amend, the district court found that “[e]ven were the Court to overlook the

untimeliness of Plaintiff’s motion, and the prejudice resulting therefrom, Plaintiff’s attempt to cure

the legal deficiencies in his complaint is futile.”

        On January 6, 2012, and February 10, 2012, pursuant to motions by the remaining

defendants, the magistrate judge recommended granting summary judgment against Appellant on

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Maxwell v. Corr. Med. Servs.

his remaining claims. On March 13, 2012, Appellant filed a second motion for permission to file

an amended complaint (the “Second Motion to Amend”), seeking to add Dr. Haresh B. Pandya and

Dr. Sylvia McQueen as defendants, reinstate Appellees CMS and PHS as defendants, and reassert

the claim against Appellee Ivens regarding Dr. Ivens’s 2007 denial of Appellant’s hip-replacement

surgery.

       On May 2, 2012, the district court issued an order adopting the magistrate judge’s

recommendations and denying the Second Motion to Amend. The district court denied the Second

Motion to Amend because it would “prejudice Defendants and unreasonably delay resolution of the

claims presently before the Court.” On May 2, 2012, the district court entered a Judgment “in favor

of Defendants and against Plaintiff.”

                                         II. ANALYSIS

       The court addresses, in turn, Appellant’s arguments regarding Dr. Ivens’s denial of hip-

replacement surgery in 2007, Dr. Mathai’s denial of pain medication, the First Motion to Amend,

and the Second Motion to Amend.

A.     Appellant Exhausted His Administrative Remedies Regarding Dr. Ivens’s 2007 Denial
       of Appellant’s Hip-Replacement Surgery.

       A district court’s dismissal of a prisoner’s civil-rights claims for failure to exhaust is

reviewed de novo. Risher v. Lappin, 639 F.3d 236, 239 40 (6th Cir. 2011) (citing Boyd v. Corr.

Corp. of Am., 380 F.3d 989, 993 (6th Cir. 2004)).

       42 U.S.C. § 1997e(a) states that “[n]o action shall be brought with respect to prison

conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail,


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Maxwell v. Corr. Med. Servs.

prison, or other correctional facility until such administrative remedies as are available are

exhausted.” As a result, “[t]here is no question that exhaustion is mandatory under the [Prison

Litigation Reform Act of 1995] and that unexhausted claims cannot be brought in court.” Jones v.

Bock, 549 U.S. 199, 211 (2007); see also Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008).

       Failure to exhaust is an affirmative defense. Bock, 549 U.S. at 216; Surles v. Andison, 678

F.3d 452, 455 (6th Cir. 2012). The defendant, therefore, bears the burden of proof on exhaustion.

Surles, 678 F.3d at 455.

       Appellant challenges the district court’s dismissal of his claim against Dr. Ivens for failure

to exhaust administrative remedies. The district court held that the Grievance did not give adequate

notice that Maxwell was grieving Dr. Ivens’s 2007 denial of his hip-replacement surgery. Appellant

challenges this holding.

       1.      The Grievance Gave Prison Officials Sufficient Notice that Appellant Was
               Grieving Dr. Ivens’s 2007 Denial of Appellant’s Hip-Replacement Surgery.

       Appellant argues that the sixth paragraph of the Grievance gave adequate notice that he was

grieving Dr. Ivens’s 2007 denial of Appellant’s hip-replacement surgery. (Appellant Br. at 21.) The

sixth paragraph of the Grievance reads: “C.M.S. Staff demonstrated “Deliberate Indifference” to My

[sic] medical needs going back to November, 2007, when Dr. Ivens refused to authorize my Hip

Replacement Operation.”

       The Supreme Court has addressed “how courts determine whether a prisoner has properly

exhausted administrative remedies     specifically, the level of detail required in a grievance to put

the prison and individual officials on notice of the claim.” Bock, 549 U.S. at 205. The Supreme


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Maxwell v. Corr. Med. Servs.

Court concluded that “[t]he level of detail necessary in a grievance to comply with the grievance

procedures will vary from system to system and claim to claim, but it is the prison’s requirements,

and not the [Prison Litigation Reform Act of 1995], that define the boundaries of proper exhaustion.”

Bock, 549 U.S. at 218; see also Reynolds-Bey v. Harris, 428 F. App’x 493, 499 (6th Cir. 2011).

       Appellant’s Grievance was filed pursuant to MDOC Policy Directive 03.02.130 (effective

date June 9, 2007) (the “MDOC Grievance Procedures”). According to the MDOC Grievance

Procedures, “vague” grievances may be rejected. The MDOC Grievance Procedures do not define

“vague” but do give the following indication of what should be included in a grievance: “The issues

should be stated briefly but concisely. Information provided is to be limited to the facts involving

the issued being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and names

of all those involved in the issue being grieved are to be included.”

       “When prison officials decline to enforce their own procedural requirements and opt to

consider otherwise-defaulted claims on the merits, so as a general rule will we.” Reed-Bey v.

Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). When prison officials decline to enforce their own

procedural rules, “the State, as the promulgator of the rules, has had a chance to provide a remedy

for the inmate and to decide whether the objectives of the review process have been served.” Id.

As a result, “the State’s decision to review a claim on the merits gives us a warrant to do so as well,

even when a procedural default might otherwise have resolved the claim.”                Id.; see also

Reynolds-Bey, 428 F. App’x at 502.

       In the case presently before this court, the Grievance is not “vague” regarding Dr. Ivens’s

2007 denial of Appellant’s hip-replacement surgery. The Grievance contained the dates and “names

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Maxwell v. Corr. Med. Servs.

of all those involved in the issue being grieved.” In paragraph three of the Grievance, Appellant

stated that Dr. Ikrom recommended the surgery on November 14, 2007: “Affiant was “ [sic] seen

by Orthopedic Surgery (Dr. Ikrom) who recomended [sic] referral to U. of M. or St. Joseph for

Bilateral Hip Replacement . . . on 11-14-2007.” In paragraph six of the Grievance, Appellant stated

that he was grieving Dr. Ivens’s November 2007 denial of hip-replacement surgery as part of his

assertion of deliberate indifference: “C.M.S. Staff demonstrated “Deliberate Indifference” to My

[sic] medical needs going back to November, 2007, when Dr. Ivens refused to authorize my Hip

Replacement Operation.” The Grievance is not vague: it is clear that Appellant was grieving Dr.

Ivens’s denial in November 2007 of Dr. Ikrom’s recommendation that Appellant receive bilateral

hip-replacement surgery.

       Furthermore, while the MDOC Grievance Procedures state that the time of day and location

of the incident “are to be included,” prison officials did not dismiss the Grievance as it regards Dr.

Ivens’s 2007 denial of Appellant’s hip-replacement surgery because the time of day and location of

the incident were not included. In Reed-Bey, we refused to dismiss a claim for failure to exhaust

administrative remedies despite the fact that the prisoner did not include the “names of all those

involved in the issue being grieved,” as required by the MDOC grievance procedures in effect at the

time the grievance was filed. Reed-Bey, 603 F.3d at 325 26. In that case, the prisoner filed a

grievance complaining about the lack of follow-up care he received after being treated in an

emergency room for a shoulder injury because, while an emergency-room physician recommended

that the prisoner see an orthopedic specialist for a shoulder injury within five days, prison officials

did not send him to see an orthopedic specialist for more than two months. Id. at 323. As in that

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Maxwell v. Corr. Med. Servs.

case, in the case presently before this Court, Appellant’s Grievance gave sufficient notice of the

matter being grieved   Dr. Ivens’s 2007 denial of Appellant’s hip-replacement surgery to conclude

that “[o]fficials at the Department of Corrections, for reasons of their own, overlooked (or perhaps

forgave) [the] procedural failing and chose to address [the] grievance on the merits.” See id. at 324.

Prison officials, therefore, have “had a chance to provide a remedy for the inmate and to decide

whether the objectives of the review process have been served,” see id., and this Court will not find

procedural default regarding Dr. Ivens’s 2007 denial of Appellant’s hip-replacement surgery.

       Finally, unlike the strict adherence to the requirement that prisoners include the names of the

defendants in their grievances, see, e.g., Hall v. Warren, 443 F. App’x 99, 106 (6th Cir. 2011),

requiring a grievance to state the time of day and location of the incident in this case may raise

constitutional concerns. For example, unlike a physical altercation with a guard, there is no

indication that Appellant could determine the time of day or location in which Dr. Ivens denied

Appellant’s hip-replacement surgery in November 2007. Since the MDOC Grievance Procedures

require Appellant to grieve Dr. Ivens’s 2007 denial of Appellant’s hip-replacement surgery, requiring

the time of day and location of the incident would deny Appellant the ability to grieve, and by

extension to file a claim in federal court regarding, Dr. Ivens’s 2007 denial of Appellant’s hip-

replacement surgery. Strictly interpreted, therefore, the MDOC Grievance Procedures might well

be unconstitutional as denying Appellant’s First Amendment right to redress grievances. See Turner

v. Safley, 482 U.S. 78, 84 (1987) (“[P]risoners retain the constitutional right to petition the

government for the redress of grievances.”). Therefore, such a narrow construction of the MDOC

Grievance Procedures would be inappropriate.

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Maxwell v. Corr. Med. Servs.

       2.      Prison Officials Did Not Dismiss As Untimely Appellant’s Grievance As It
               Regarded Dr. Ivens’s 2007 Denial of Appellant’s Hip-Replacement Surgery.

       “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative

review process in accordance with the applicable procedural rules’     rules that are defined not by the

[Prison Litigation Reform Act of 1995], but by the prison grievance process itself.” Bock, 549 U.S.

at 218 (citation omitted) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Reynolds-Bey,

428 F. App’x at 499. “The benefits of exhaustion can be realized only if the prison grievance system

is given a fair opportunity to consider the grievance. The prison grievance system will not have such

an opportunity unless the grievant complies with the system’s critical procedural rules.” Woodford,

548 at 95. As a result, “a prisoner must adhere to any time limitations that are part of the

institutional grievance policy.” Surles, 678 F.3d at 455; see also Reynolds-Bey, 428 F. App’x at 500.

       In the instant case, Appellant correctly points out that, even if the Grievance could have been

dismissed as untimely, “nowhere in the grievance process is there a claim that it was untimely.”

(Appellant Reply Br. at 8.) The MDOC has dismissed grievances similar to that of Appellant

because those grievances referred to concerns that were not timely grieved. See Corr. Med. Servs.,

Inc., 326 F. App’x at 890 (finding untimely a grievance that the MDOC had dismissed because

“concerns relating back to 1997 [policies and customs] were not timely” filed in 2006). In the instant

case, however, prison officials did not deny the Grievance as untimely. Rather, prison officials

denied the Grievance on the merits after it had been pursued through all three stages of the grievance

process, concluding that “[a]ll relevant information has been reviewed within the electronic record”

regarding Appellant’s “alleg[ation that] he is being denied hip surgery and pain relief associated with


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Maxwell v. Corr. Med. Servs.

his hips.” Prison officials, therefore, have “had a chance to provide a remedy for the inmate and to

decide whether the objectives of the review process have been served,” see Reed-Bey, 603 F.3d at

325, and this court will not consider the Grievance untimely as it regards Dr. Ivens’s 2007 denial of

Appellant’s hip-replacement surgery.

       In summary, the Grievance gave sufficient notice that Appellant was grieving Dr. Ivens’s

2007 denial of Appellant’s hip-replacement surgery, and prison officials did not dismiss the

Grievance due to procedural default. We reverse the district court’s finding that Appellant did not

exhaust his administrative remedies regarding his claim against Dr. Ivens for the 2007 denial of hip-

replacement surgery, and we remand that claim for consideration on the merits.

B.     Appellant Did Not State a Claim Against Dr. Mathai for Denial of Pain Medication.

       Appellant asserts that “the claim against Dr. Mathai should not have [sic] dismissed as to the

denial of pain medication because the complaint made that claim and it was covered in the

grievance.” (Appellant Br. at 15.) The only statement in Appellant’s brief supporting this assertion

is that “the Magistrate Judge erroneously read the complaint against Dr. Mathai as limited to only

to [sic] a denial of an MRI whereas the complaint also complains of Dr. Mathai for failure to give

adequate pain medication.” (Id. at 19.) In his brief, Appellant does not indicate where in his

Complaint he states a claim against Dr. Mathai for denial of pain medication.

       The district court found that the complaint “only asserted a claim against Dr. Mathai for

denial of an MRI examination.” Appellant argued before that court that paragraph forty-two of his

complaint stated a claim against Dr. Mathai for denial of pain medication because that paragraph

stated that Dr. Mathai “did not act to ‘optimize pain management.’” The district court rejected this

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argument because the language of the complaint actually states that “the [Pain Management

Committee] did not act ‘to optimize pain management.’”

        If Appellant did not state a claim against Dr. Mathai for denial of pain medication, whether

Appellant properly exhausted his administrative remedies regarding Dr. Mathai’s alleged denial of

pain medication is irrelevant.

        “This court reviews the district court’s order granting a Rule 12(b)(6) motion to dismiss de

novo.” Dudenhoefer v. Fifth Third Bancorp, 692 F.3d 410, 416 (6th Cir. 2012).

        In assessing a complaint for failure to state a claim, we must construe the complaint
        in the light most favorable to the plaintiff, accept all well pled factual allegations as
        true, and determine whether the complaint “contain[s] sufficient factual matter,
        accepted as true, to state a claim to relief that is plausible on its face.”

Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

        Taken in the light most favorable to Appellant, the Complaint fails to state a claim against

Dr. Mathai for denial of pain medication. Paragraph forty-two of the complaint states that Dr.

Mathai did not authorize an MRI examination and referred Appellant to the Pain Management

Committee “to optimize pain management.” (R. 1 ¶ 42(e).) The complaint then alleges that,

following Dr. Mathai’s recommendation “the [Pain Management Committee] did not act to

‘optimize pain management.’” (Id. ¶ 42(f).) The complaint, therefore, may allege that the Pain

Management Committee denied Appellant pain medication, but it does not allege that Dr. Mathai

denied Appellant pain medication. Since Appellant did not state a claim against Dr. Mathai for

denial of pain medication, whether Appellant exhausted his administrative remedies regarding that

claim is irrelevant.


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       We affirm the district court’s finding that Appellant did not state a claim against Dr. Mathai

for denial of pain medication.

C.     Appellant’s First Motion to Amend Was Futile and, Therefore, Properly Denied.

       Appellant first sought leave to amend his complaint to “specifically allege the polices [sic],

practices of [sic] customs of [CMS and PHS].” The district court denied Appellant’s First Motion

to Amend because it was untimely, and therefore prejudicial, and because it was futile: “Even were

the Court to overlook the untimeliness of Plaintiff’s motion, and the prejudice resulting therefrom,

Plaintiff’s attempt to cure the legal deficiencies in his complaint is futile” because the “allegations

in Plaintiff’ [sic] proposed amended complaint . . . fail to ‘raise a right for relief above the

speculative level.’”

       “We review the denial of a motion for leave to amend for abuse of discretion, except when

the denial was due to futility, in which case we review de novo.” Orton v. Johnny’s Lunch

Franchise, LLC, 668 F.3d 843, 850 (6th Cir. 2012). “Any error in denying a motion to amend is

subject to harmless error analysis.” Johnson v. Cleveland City Sch. Dist., 344 F. App’x 104, 114

(6th Cir. 2009) (citing Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)).

An abuse of discretion in denying a motion to amend “amounts to harmless error where the proposed

amendment would have been futile.” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010).

       “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6)

motion to dismiss.” Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.

2010) (internal citation and quotation marks omitted). To survive a motion to dismiss, “[f]actual

allegations must be enough to raise a right to relief above the speculative level and to state a claim

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Maxwell v. Corr. Med. Servs.

to relief that is plausible on its face.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012)

(alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal

quotation marks omitted). “A plaintiff must ‘plead[] factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.’” Id. (alteration in

original) (quoting Iqbal, 556 U.S. at 678).

       Regarding private contractors employed by a state such as CMS and PHS, “liability only

attaches where a custom, policy, or practice attributable to the municipality was the ‘moving force’

behind the violation of the plaintiff’s constitutional rights.” See Heyerman v. Cnty. of Calhoun, 680

F.3d 642, 648 (2012); see also Street v. Corrs. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996)

(recognizing that Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), extends to private corporations

as well as municipal corporations). “Since such bodies can act only through natural persons, the

critical question is whether the person committing the act did so pursuant to official policy.” Baar

v. Jefferson Cnty. Bd.of Educ., 476 F. App’x 621, 636 (6th Cir. 2012) (internal quotation marks

omitted).

       Appellant’s First Proposed Amended Complaint was futile because it did not sufficiently

plead a cause of action against CMS or PHS. Appellant argues that: “The proposed amended

complaint alleged the policies, practices, and customs against CMS and PHS in paragraphs 37 and

46. What these policies, practices, and customs caused to plaintiff are alleged in paragraphs 38 and

47.” The only indication in paragraphs thirty-eight and forty-seven that the policies of CMS and

PHS were the “‘moving force’ behind the violation of the plaintiff's constitutional rights” is the

following statement: “These policies, practices, and customs resulted in Plaintiff suffering almost

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constant pain for the entire time of the most recent incarceration.” This court, however, “need not

accept as true legal conclusions or unwarranted factual inferences, and conclusory allegations or

legal conclusions masquerading as factual allegations will not suffice.” In re Travel Agent Comm’n,

583 F.3d at 903 (citation omitted) (internal quotation marks omitted). As a result, Appellant’s

conclusory allegation that CMS and PHS policies caused the violation of his constitutional right does

not “state a claim to relief that is plausible on its face.” See Keys, 684 F.3d at 608.

       Appellant also argues that the First Proposed Amended Complaint “could have been . . .

amended” to state a claim and that “[l]eave to amend should only be denied if there are [sic] no set

of facts which would constitute a valid claim.” (Appellant Br. 33.) The no-set-of-facts standard,

however, was “retired” by the Supreme Court in Twombly. Iqbal, 556 U.S. at 670, 678 80. As

stated above, Appellant’s argument fails under current pleading standards.

       In his reply brief, Appellant also argues that “[t]he policy to deny surgery because of a claim

that the need arose due to a condition suffered before incarceration is clearly an alleged

unconstitutional policy expressly followed by Defendant Ivens.” (Appellant Reply Br. at 11.) As

stated in the First Proposed Amended Complaint, however, the policy referenced by Appellant

allowed employees to exercise discretion: “The custom, practice, or policy to consider whether [sic]

prisoner had the condition prior to incarceration as a reason to not approve needed surgery.” (R. 35-

2 at PID 715, 720 (emphasis added).) While Appellant alleged that Dr. Ivens denied the 2007

request for hip-replacement surgery because the condition was “pre-existing,” Appellant did not

allege that Dr. Ivens was “‘responsible for establishing final [corporate] policy respecting such

activity.’” See Holloway v. Brush, 220 F.3d 767, 773 (6th Cir. 2000) (en banc) (quoting Pembaur

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v. City of Cincinnati, 475 U.S. 469, 483 (1986)); see also Miller v. Calhoun Cnty., 408 F.3d 803, 814

(6th Cir. 2005). Regarding the policy of considering whether a condition was pre-existing, the First

Proposed Amended Complaint did not plead a necessary element of the claim, so it does not “state

a claim to relief that is plausible on its face.” See Keys, 684 F.3d at 608 (quoting Twombly, 550 U.S.

at 570).

       In summary, because the First Proposed Amended Complaint did not sufficiently plead a

cause of action against CMS or PHS, it was futile. We affirm the district court’s denial of the First

Motion to Amend.

D.     Regarding the Second Motion to Amend, Appellant Did Not Show Good Cause and
       Allowing the Amendment Would Have Been Prejudicial to the Nonmoving Parties.

       In the case presently before this court, it is asserted that the district court abused its discretion

by denying Appellant’s Second Motion to Amend pursuant to Federal Rule of Civil Procedure 15(a)

without first considering Federal Rule of Civil Procedure 16(b). The court finds, however, that any

abuse of discretion by the district court was harmless error in any event. There was no showing of

good cause as required by Rule 16(b), and the district court properly found prejudice pursuant to

Rule 15(a). Moreover, there would be substantial prejudice to the other parties. Appellant’s counsel

filed the Second Motion to Amend more than three months after the deadline for completing

discovery, and both the Appellant and Appellee PHS argue that they would have had to reopen

discovery (see Appellant Br. 24; Appellee PHS Br. 19). The district court denied Appellant’s

Second Motion to Amend because “Plaintiff waited to attempt to remedy [the legal deficiencies in

his Complaint] until after the Magistrate Judge recommended dismissal of all remaining claims. .


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. . [Permitting the amendment] under these circumstances would prejudice Defendants and

unreasonably delay resolution of the claims presently before the Court.”

       The district court having properly found prejudice pursuant to Rule 15(a), we affirm the

district court’s denial of the Second Motion to Amend.

                                      III. CONCLUSION

       For the reasons stated, we REVERSE the district court’s decision that Appellant did not

properly exhaust his administrative remedies regarding his claim against Dr. Ivens for denial of

hip-replacement surgery in 2007, and we REMAND that claim to the district court for consideration

on the merits. We AFFIRM the district court’s decision that Appellant did not state a claim against

Dr. Mathai for denial of pain medication. We AFFIRM the district court’s denials of Appellant’s

motions to amend.




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