The opinion of the court was delivered by: John D. Bates United States District Judge
In this action filed pursuant to 42 U.S.C. § 1983, plaintiff seeks damages for violation of his Eighth Amendment rights stemming from his alleged exposure to second-hand tobacco smoke while confined in 2002 at the District of Columbia Department of Corrections' Central Detention Facility ("D.C. Jail"). Now pending are defendants' motion for leave to amend their answer and their motion for summary judgment.*fn1 Upon consideration of the parties' submissions and the applicable law, the Court will deny defendants' motion to amend but grant their motion for summary judgment.
Plaintiff was incarcerated at the D.C. Jail from January 21, 2002 to August 23, 2002. Complaint ("Compl.") at 5; see Defendant's Statement of Material Facts [Dkt. No. 56-3] ¶ 3. Plaintiff asserts that while at the jail he was exposed to high levels of environmental tobacco smoke ("ETS"). Id.; Pl.'s Ex. 1 (Dep. of Abubakr Abdullah) at 123-24, 134. Plaintiff was transferred eight times within the jail; three times he was housed in non-smoking cellblocks. Def.'s Facts ¶ 3. Plaintiff spent nearly five of his seven months at the jail in smoking units, Def.'s Facts ¶ 4, but he claims that smoking occurred in every cellblock to which he was assigned. Pl.'s Ex. 1 at 123-24, 134; see Pl.'s Ex. 8 at 10-12 (Environmental Inspection Report from May 22 to June 13, 2002) ("smoking is permitted in all sixteen . . . cellblocks").
On May 31, 2002, plaintiff filed a grievance regarding his exposure to second-hand smoke to Marvin L. Brown, the D.C. Jail's Deputy Director of Operations. Def.'s Exs. 5, 11. Mr. Brown directed plaintiff to address his concerns with his correctional counselor and the case manager for his housing unit. Def.'s Ex. 11. Plaintiff did not appeal Mr. Brown's response to his grievance. Def.'s Ex. 13 (Abdullah Dep.) at 125. Plaintiff claims that despite his request for the necessary forms to file an appeal, jail officials failed to provide them to him. Pl.'s Ex. 1 at 136. As a result, plaintiff wrote letters to defendants Washington, Anthony, and Lyons regarding his exposure to second-hand smoke. Id.at 143-48. Plaintiff asserts that these letters were "answered without sufficient efforts or satisfaction." Compl. Att. at 2. Plaintiff then initiated this action in federal court on August 20, 2002.
Plaintiff alleges that his exposure to second-hand smoke may imperil his physical health. Id. According to his expert, plaintiff's exposure to second-hand smoke increases his risk of developing lung cancer, asthma, and nasal sinus cancer. Pl.'s Ex. 5 at 2, 13. Plaintiff therefore claims that defendants have violated his rights under the Eighth Amendment to the United States Constitution. Compl. Att. at 2. He seeks monetary damages for the alleged physical injuries he has sustained and for any future health problems attributable to defendants' alleged misconduct. Compl. at 5.
A. Defendants' Motion to Amend the Answer
In a motion to amend the answer filed in conjunction with their summary judgment reply brief, defendants seek to raise the affirmative defense of plaintiff's failure to exhaust administrativeremedies pursuant to 42 U.S.C. § 1997e(a). Jones v. Bock, 549 U.S. ___, 127 S.Ct. 910, 921 (2007) (concluding "that failure to exhaust is an affirmative defense under the [Prison Litigation Reform Act]"). Without this amendment, the Court may not consider defendants' exhaustion argument advanced in their summary judgment motion. See Harris v. United States Dep't of Veterans Affairs, 126 F.3d 339, 341 (D.C. Cir. 1997) (requiring "affirmative defenses [to] be raised in a responsive pleading, not a dispositive motion").
Whether to grant leave to amend a pleading is a matter left to the district court's sound discretion. Foman v. Davis, 371 U.S. 178, 182 (1962); Nwachukwu v. Karl, 222 F.R.D. 208, 210 (D.D.C. 2004). The Court must use a generous standard in evaluating a motion to amend and in determining the propriety of the proposed amendment on a case-by-case basis. Harris, 126 F.3d at 344. Among the reasons that may justify denying leave to amend are undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and the futility of the amendment. Foman, 371 U.S. at 182.
Because amendments are to be liberally granted, the non-movant bears the burden of showing why an amendment should not be allowed. Dove v. WMATA, 221 F.R.D. 246, 247 (D.D.C. 2004).
Plaintiff opposes the motion to amend, arguing that defendants have waived the exhaustion defense, that they have unduly delayed moving to amend, and that plaintiff will be prejudiced by the amendment. Defendants counter that they "reserved the right to amend [their] answer to the complaint and raise any additional defenses, which the evidence in discovery may reveal." Memorandum of Points and Authorities in Support of Motion for Leave to Amend Defendants' Answer at 1.
It is evident that defendants have been dilatory in moving to amend the answer. This case was filed five years ago. Defendants did not assert the exhaustion defense in their answer (filed September 2, 2003) or in two motions to dismiss (filed January 29, 2003 and April 21, 2006). Nor did they seek to amend the answer at the close of discovery on March 7, 2007, or even upon their filing of the pending summary judgment motion on April 6, 2007, in which the defense was first discussed. Rather, defendants waited until the filing of their reply brief on June 4, 2007, to seek leave to amend the answer. Defendants' implied revelation of this possible defense only after plaintiff's deposition in March 2007 is belied by the record. Plaintiff pled exhaustion in the complaint, which provided a reasonable basis for defendants to assert a failure to exhaust among the other affirmative defenses they did plead in their answer. And defendants, having custody and control of plaintiff's prison file, were in a position all along to determine the plausibility of raising the defense.
A key issue in considering a motion to amend is whether the non-movant will suffer any prejudice if the amendment is allowed. Nurriddin v. Goldin, 382 F. Supp.2d 79, 91 (D.D.C. 2005), aff'd 2007 WL 1126199 (D.C. Cir. Apr. 16, 2007). Plaintiff claims that prejudice will result because of the significant discovery that has taken place, including document discovery, numerous depositions, and the hiring of an expert. Because discovery is closed, plaintiff contends that he cannot acquire documents and evidence to support his claim that he has exhausted his remedies. Indeed, plaintiff reasonably asserts that he "might have formulated his discovery requests differently" had he known of ...