SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL, Magistrate Judge.
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Before the Court is "Plaintiff's Supplemental Motion for Leave to Amend the Complaint." Doc. No. 90. For the following reasons, it is recommended Plaintiff's Motion be denied.
I. Procedural Background
Plaintiff is incarcerated at James Crabtree Correctional Center ("JCCC"). He initiated this action on May 4, 2016. Doc. No. 1. On October 18, 2016, pursuant to an Order from the Court, Defendants filed a Special Report, as contemplated in Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Doc. No. 27. On October 29, 2016, Defendants filed a Motion to Dismiss, which the Court granted on March 28, 2017. Doc. Nos. 28, 44. Plaintiff subsequently appealed the dismissal to the Tenth Circuit Court of Appeals. Doc. No. 46. On December 13, 2017, the Tenth Circuit reversed this Court's dismissal and remanded the same. Doc. No. 53.
On January 25, 2018, Plaintiff filed a "Motion for Leave to Amend the Complaint Since Being Remanded Back from the Tenth Circuit Court of Appeals." Doc. No. 63. On March 13, 2018, the Court granted Plaintiff's Motion and Plaintiff's Amended Complaint was filed on the same day. Doc. Nos. 69, 70. In his initial and Amended Complaint, Plaintiff asserts state and federal claims primarily based upon two instances in which Defendants, JCCC employees, suspended Plaintiff from the religious diet program, once in 2015 and once in 2017. He also asserts claims challenging the lawfulness of the terms of the Oklahoma Department of Corrections' policy upon which his suspensions were based.
Based, in part, on Plaintiff's Amended Complaint, Defendants requested and the Court ordered them to file an Amended Special Report. Doc. Nos. 71, 74, 75, 78. On April 26, 2018, Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint. Doc. No. 79. On June 8, 2018, Plaintiff filed a Response, Doc. No. 83, and on July 2, 2018, the undersigned issued a Supplemental Report and Recommendation in which Plaintiff's claims and the supporting factual allegations were analyzed thoroughly and in detail. Doc. No. 84. The undersigned recommended the Motion to Dismiss be granted in part and denied in part. Id. Plaintiff and Defendants have filed objections to the same, see Doc. Nos. 85, 86, and the Supplemental Report and Recommendation is currently pending before United States District Judge Robin Cauthron.
In his proposed Second Amended Complaint, Plaintiff does not assert any new factual allegations. Instead, he asserts two new claims against Defendant Jay Drawbridge related to Plaintiff's 2015 and 2017 religious diet suspensions, see Doc. No. 90-1 at 5-6, 10-11, and an Eighth Amendment claim against Defendants Kelly Curry, Rowena Bell, and Drawbridge also based upon the same suspensions. Id. at 16.
II. Analysis
Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend "shall be freely given when justice so requires." Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A finding of undue delay may be appropriate where the facts or claims sought to be added were available to the movant at the time the original pleading was filed, or where the movant fails to offer a reasonable justification for why it did not seek amendment earlier. Sipp v. Unumprovident Corp., 107 F. App'x 867, 876-77 (10th Cir. 2004) (citing Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990)). Based upon this standard, Plaintiff's request to amend is untimely and the undersigned recommends the proposed amendments be denied.
As previously noted, this case was filed in 2016 and Plaintiff amended his Complaint in March 2018. Plaintiff's latest proposed amendments cover the same time period and relate to the same facts as those giving rise to his original Complaint and those asserted in his Amended Complaint. Compare Doc. Nos. 70 and 90-1. Reviewing the pleadings that Plaintiff has previously filed in this matter and the proposed Second Amended Complaint, it is clear that the proposed new claims are not based upon new information or evidence but instead merely additional claims based upon the exact same factual allegations originally alleged two years ago when Plaintiff initiated this case, as well as those set forth in his Amended Complaint.
Indeed, Plaintiff concedes in his Motion that the additional First Amendment claims against Defendant Drawbridge relate to his 2015 and 2017 religious diet suspensions. Doc. No. 90 at 1. These are the same suspensions from which Plaintiff's current claims in this lawsuit arise. Moreover, Plaintiff's Eighth Amendment claim against Defendants Curry, Bell, and Drawbridge are also based upon the 2015 and 2017 suspensions. Doc. No. 90-1 at 16. Additionally, Plaintiff has failed to provide any justifiable reason (or, for that matter, any reason at all) for his undue delay and failure to file a timely motion for leave to amend his complaint. See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994). Denial of leave to amend is appropriate in these circumstances. See State Distributors, Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984) ("Where the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial."); Nsien v. Country Mut. Ins. Co., No. 16-CV-530-JED-TLW, 2017 WL 368504, at *3 (N.D. Okla. Jan. 25, 2017) (denying the plaintiffs' request to amend the complaint in order to add a new party where "the plaintiffs were clearly aware of [the proposed defendant's] involvement when the [] action was filed and were capable of naming her as a defendant at that time."); Cardella v. Mountain Reservations, Inc., No. 2:07-CV-1003 BCW, 2009 WL 2436769, at *2 (D. Utah Aug. 4, 2009) (noting "the Tenth Circuit has often found untimeliness alone to be a sufficient reason to deny [a request to amend] especially in cases where the causes of action were available to the plaintiff at the time the original complaint was filed." (citing Hayes v. Whitman, 264 F.3d 1017, 1029 (10th Cir. 2001); Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799 (10th Cir. 1998); Las Vegas Ice & Cold Storage, 893 F.2d at 1185)).
Furthermore, prejudice to the nonmoving party is among the most important factors in considering whether amendment should be permitted. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). "Courts typically find prejudice only when the amendment unfairly affects the defendants `in terms of preparing their defense to the amendment.'" Id. at 1208 (quoting Patton v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). "As a general rule, the risk of substantial prejudice increases with the passage of time." 6 Wright, Miller & Kane, Federal Practice and Procedure §1488, at 670. Given the length of time Defendants' Motion to Dismiss (Doc. No. 79) was pending before Plaintiff filed his untimely request to amend, the undersigned finds Defendants would be prejudiced by allowing Plaintiff to further amend his pleadings.
RECOMMENDATION
Based on the foregoing findings, it is recommended "Plaintiff's Supplemental Motion for Leave to Amend the Complaint" (Doc. No. 90) be DENIED. Plaintiff is advised of his right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by October 15th, 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Second Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Second Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.
