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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WALTER DAY,

Plaintiff,

v. CASE NO. 4:03-cv-00144-SPM-AK

PARKER T ALLIS,

Defendant.

___________________________/

O R D E R 

This matter is before the Court on Plaintiff’s Motion for Leave to File an amended

complaint. (Doc. 52). In said motion, Plaintiff requests that Defendant Hau Huynh be

dismissed from this lawsuit because Plaintiff has learned that Huynh was not the

examining physician, as he asserted in his original complaint. Indeed, Defendant Huynh

has filed a motion for summary judgment (doc. 44) contending that he was not even

employed by Taylor Correctional Institution at the time Plaintiff alleges that he examined

him. Thus, the Court grants Plaintiff’s voluntary request/motion to dismiss Defendant

Hau Huynh from this lawsuit. 

Plaintiff also seeks leave to file an amended complaint which he has attached to

his motion, wherein he asserts claims of deliberate indifference to his serious medical

needs against three new Defendants (Drs. Colon, Vizcarra, and Bianco) and their

employer. Attached to the proposed amended complaint are the same grievances

attached to the original complaint and do not name any of the proposed new

defendants. Consequently, Plaintiff has failed to exhaust administrative remedies as to

these proposed new claims and as such the proposed amended complaint would be

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Case No: 4:03-cv-00144-SPM-AK

futile. 

Also, Plaintiff has failed to allege constitutional claims against these three

doctors, whom he admits examined him, but failed to detect the broken jaw when they

initially reviewed the x-rays. Such a claim is more properly cast as a negligence or

medical malpractice claim. 

Finally, his claims against the employer of these doctors would not be cognizable

since supervisory personnel cannot be held vicariously liable for the actions of their

subordinates, but may be independently liable if a reasonable person in the supervisor’s

position would have known that his conduct infringed the Plaintiff’s rights and the

supervisor’s conduct was causally related to the subordinate’s constitutional violation. 

Greason v. Kemp, 891 F.2d 829, 836 (11th Cir. 1990); McKinney v. DeKalb County, 997

F.2d 1440, 1443 (11th Cir. 1993). Plaintiff has not alleged that the “employer” knew

anything about the actions of these doctors or was otherwise involved in the

examinations and diagnoses of the Plaintiff. 

Fed.R.Civ.P. 15(a) provides that amendment after a responsive pleading has

been served, absent written consent of the adverse party, requires leave of court, but

"leave shall be freely given when justice so requires." However, amendment should not

be granted if the amendment would be futile:

Amendment need not be allowed where it would be futile to add new claims.

Among the reasons that the Supreme Court has recognized as warranting

the denial of a motion to amend is "futility of amendment." Foman v.

Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). "A

proposed amendment is futile if the complaint, as amended, would be

subject to dismissal." Jefferson County School Dist. No. R-1 v. Moody's

Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir.1999).

Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 777 n. 10 (11th Cir. 2000). The standard for

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Case No: 4:03-cv-00144-SPM-AK

dismissal is “unless it appears beyond doubt that the plaintiff [or in this case Defendant]

can prove no set of facts in support of his claim which would entitle him to relief.” 

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 

Upon review of Plaintiff’s proposed amended complaint, the Court finds that it

would be subject to immediate dismissal and is therefore futile. 

Accordingly, it is

ORDERED:

1. Plaintiff’s motion (doc. 52) is GRANTED IN PART, insofar as it seeks

dismissal of Defendant Hau Huynh, and all claims against him are dismissed. The

motion is DENIED in all other respects.

2. In light of this dismissal, Defendant Huynh’s Motion for Summary Judgment

(doc. 44) is DEEMED MOOT, and to require no further action by the Court.

DONE AND ORDERED this 21st day of June, 2006

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

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