MEMORANDUM AND ORDER
This civil rights action arises out of plaintiff Joe T. Little's claimsof mistreatment by law enforcement officers, jail officers, and jailmedical personnel in connection with his July 5, 2000 arrest andincarceration. This memorandum and order responds to a number of pendingpretrial motions.
1. Motions to Amend the Complaint and for Leave to Amend Complaint filedby Plaintiff
Plaintiff has filed a motion to amend his complaint [document no. 20]and two motions seeking leave to amend his complaint [document nos. 24and 25]. In his motion to amend his complaint, plaintiff seeks to specifypreviously unnamed defendants and to add two factual allegations; in histwo motions for leave to amend his complaint, plaintiff seeks to listdefendant Allied Resources for Correctional Health, Inc. ("ARCH") as adefendant to Count IV and to add an allegation that the conduct of ARCH'semployees (which is complained of in Count IV) was the result ofnegligent training and supervision on the part of ARCH. ARCH objects toall 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 theNovember 30, 2001 deadline for joinder of additional parties/amendmentsto the pleadings established in the amended pretrial order [document no.18]. Yet the motions make no effort to provide an explanation for theiruntimeliness. Second, plaintiff does not dispute ARCH's assertion that,months prior to the November 30, 2001 deadline, he was in possession ofthe transcripts of telephone calls on which he now bases his request toadd a negligent training and supervision claim. Third, and mostimportantly, the transcripts contain little (if any) probative evidencethat ARCH violated plaintiff's constitutional rights by inadequatelytraining and/or supervising Alfred B. Cichon and Debra McCann.Consequently, plaintiff has provided me with no basis for concluding thatjustice requires that he be permitted to amend his complaint beyond thedate set by the 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. Butits objection is based upon the presupposition that it is named as adefendant to Count IV of plaintiff's complaint. As I explain below,ARCH's presupposition is mistaken; Count IV does not name ARCH as a partyin either form or substance. I thus have no grounds for denying themotion. Plaintiff should file his amended complaint on or before Friday,April 12, 2002.
2. Motions to Dismiss Filed by Defendant ARCH
ARCH has filed three motions to dismiss. Two of the motions [documentnos. 10 and 23] seek dismissal of Count IV of the complaint insofar as itpertains to ARCH; a third [document no. 6] seeks dismissal of both CountVI's negligence claim (insofar as it pertains to ARCH) and a cross-claimfor indemnification based on an indemnification provision in a contractfor medical services between ARCH and Penobscot County and broughtagainst ARCH by Penobscot County and certain of its employees.
Subsumed within ARCH's second motion to dismiss Count IV is an argumentthat Count IV does not, in fact, state a claim under 42 U.S.C. § 1983against ARCH; it only states a claim against certain ARCH employees. Iagree. Count IV neither purports to state a § 1983 claim against ARCHnor does so in effect. There is no reason for me to dismiss a claim thathas not been brought. Accordingly, I deny ARCH's two motions to dismissCount IV.
ARCH's motion to dismiss both the negligence claim in Count VI (insofaras it pertains to ARCH) and the cross-claim for indemnification ispremised on an argument that these claims have not been presented to apre-litigation screening panel, as is required by the Maine HealthSecurity Act ("MHSA").2 Plaintiff does not dispute that the MHSAapplies and that he did not comply with its mandatory pre-litigationscreening panel requirements; in fact, he has not filed an objection toARCH's motion. Penobscot County and its employees object on the groundthat the MHSA does not apply to its cross-claim.
In a soundly reasoned opinion, Judge Brody recently concluded that aplaintiff must satisfy the MHSA's mandatory pre-litigation screeningpanel requirements before pressing a supplemental negligence claim againsta health care provider in an action based on federal questionjurisdiction. See Hewett v. Inland Hospital, 39 F. Supp.2d 84, 86-88(D.Me. 1999). Because the plaintiff in Hewett had not yet complied withthose requirements, Judge Brody declined to exercise jurisdiction overresolving her federal claim. See id. at 87-88; see also Ferris, 44 F.Supp.2d at 66 (declining, on similar grounds, to exercise jurisdictionover a supplemental negligence claim not yet presented to apre-litigation screening panel).
I agree that plaintiff is required to comply with the proceduralrequirements of the MHSA, and that he has not yet done so. FollowingJudge Brody's lead, I decline to exercise supplemental jurisdiction overplaintiff's negligence claim against ARCH so as to avoid delay inresolving plaintiff's remaining claims. See28 U.S.C. § 1367(c)(4).3 Also, because the balance of Count VI— plaintiff's negligence claims against Penobscot County and itsemployees — is inextricably intertwined with the negligence claimagainst ARCH and should be pressed in the same proceeding, I decline toexercise supplemental jurisdiction over the entirety of Count VI. Seeid. Finally, because the cross-claim of Penobscot County and itsemployees seeksindemnification for liabilities incurred bycross-claimants as a result of ARCH's conduct, it can pertain only toplaintiff's negligence claim, and not to his constitutional claim, againstthe County and its employees. See City of Canton v. Harris, 489 U.S. 378,385 (1989) (emphasizing that a state actor is only liable under42 U.S.C. § 1983 for its own unconstitutional conduct and that"[r]espondeat superior or vicarious liability will not attach under§ 1983") (citing Monell v. New York City Dept. of Social Services,436 U.S. 658, 694-95 (1978)). I therefore decline to exercisesupplemental jurisdiction over this cross-claim, which should be pressedin the same proceeding as the negligence claim. See supra note 3.
In sum, I deny plaintiff's motions for leave to file an amendedcomplaint [document nos. 24 and 25], but grant plaintiff's motion toamend his complaint [document no. 20]. Plaintiff should file his amendedcomplaint on or before Friday, April 12, 2002. I also deny ARCH's twomotions to dismiss Count IV of the complaint [document nos. 10 and 23]because Count IV neither purports to state a claim against ARCH nor doesso in effect. Finally, I deny ARCH's motion to dismiss plaintiff'snegligence claim and the cross-claim of Penobscot County and certain ofits employees [document no. 6] insofar as the motion seeks a dismissal ofthese claims with prejudice. But for the reasons set forth above, Idecline to exercise supplemental jurisdiction over these claims, thebalance of Count VI of the complaint, and ARCH's cross-claim againstPenobscot County and certain of its employees.
1. My denial of plaintiff's motions for leave to amend is withoutprejudice to plaintiff filing another such motion should he uncover abasis for adding ARCH as a defendant to one or more of his federalclaims. But if plaintiff brings such a motion, he should (1) attach theproposed amended filing to the motion to amend, (2) identify in the motionor a supporting memorandum any new factual allegations and legal claimsin the proposed amended pleading, and (3) explain why the new allegationsand claims were not included in the original filing and why the amendmentshould be allowed notwithstanding its untimeliness under the amendedpretrial order. Cf. Local Rule 15.1, United States District Court for theDistrict of New Hampshire.
2. The MHSA governs "action[s] for damages against [a] health careprovider . . . based on tort or breach of contract . . . arising out ofthe provision or failure to provide health care services." Me. Rev.Stat. Ann. tit. 24, § 2502(6). As explained by Judge Brody, the Actrequires that such actions be the supplemental negligence claim so as toavoid 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 Me. Rev. Stat. Ann. tit. 24, § 2853(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 id. at §[§] 2851-59; see also Chorosczy v. Tso, 647 A.2d 803, 805 n. 1 (Me. 1994) (explaining the statutory scheme).
Ferris v. County of Kennebec, 44 F. Supp.2d 62, 66 (D.Me. 1999).
3. My decision not to exercise supplemental jurisdiction overplaintiff's negligence claim against ARCH means that ARCH is no longer aparty to this action and does not face potential liability in thisaction. Consequently, I decline to exercise supplemental jurisdictionover ARCH's cross-claim for contribution and/or indemnity againstPenobscot County and certain of its employees. ARCH's cross-claim shouldbe pressed in the same proceeding as Penobscot County's cross-claim andthe underlying negligence claims to which these cross-claims pertain. Seeinfra.