The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge
This matter is before the Court on the Motion to Amend Complaint [Doc. No. 20] filed by Robert Aaron Greenberg, Esquire, counsel for Plaintiffs, Kent R. Collins, Mirian Collins, Jerry C. Cora, Thomas J. Duffy, Agostino J. Fare, Brandy Fare, Beth Lindsay and Matthew Lindsay. Plaintiffs request leave of court to file a Second Amended Complaint ("Complaint") to join the Gloucester County Board of Chosen Freeholders, Gloucester County Department of Correctional Services, Gloucester County Sheriff's Department, Prison Health Services, Inc. ("PHS"), John Tevoli and W. Stanley Nunn (collectively the "new Defendants") as named Defendants. Plaintiffs' proposed Complaint claims that the new Defendants negligently failed to warn them of possible exposure to a contagious disease, intentionally misled or concealed their possible exposure to a contagious disease, failed to provide them with medical care, were deliberately indifferent to their rights, and violated their First, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Plaintiffs' proposed Complaint also clarifies their claim for loss of consortium on behalf of Plaintiffs, Mirian Collins, Brandy Fare, and Matthew Lindsay. For the following reasons, portions of Plaintiffs' Motion to Amend are GRANTED in part, portions are DENIED in part, and other portions are DENIED without prejudice to Plaintiffs' right to amend their proposed Complaint.
This lawsuit is one of twenty cases consolidated for discovery and case management purposes that stem from an outbreak of Methicillin-Resistant Staphylococcus Aureus ("MRSA") at the Gloucester County Prison ("Prison") . Of the twenty consolidated cases, Plaintiffs' lawsuit is the only matter filed on behalf of corrections officers at the Prison. The remaining cases were filed by former or current inmates. Plaintiffs filed their Complaint on June 9, 2006. See Doc. No. 1. Plaintiffs filed an Amended Complaint on June 16, 2006. See Doc. No. 2.
Plaintiffs' proposed Complaint seeks to add as additional named Defendants the parties who were already named as Defendants in the other nineteen consolidated cases. Plaintiffs argue generally that the new Defendants may be responsible for their injuries. Proposed new Defendant, PHS, opposes Plaintiffs' Motion. PHS argues that Plaintiffs have not alleged "a constitutional right of which they were deprived." PHS further argues that Plaintiffs' due process claims are futile because they failed to establish a special relationship between themselves and PHS and failed to state a claim under the state-created danger doctrine. PHS further contends that Plaintiffs were not incarcerated and are not subject to the protections of the Eighth Amendment. PHS also contends that the Sixth Amendment does not apply to Plaintiffs in this case. PHS further argues that they cannot be negligent because they did not owe a duty of care to Plaintiffs. PHS also argues that Plaintiffs' Motion should be denied because of undue delay.
Defendants, County of Gloucester, Robert M. Balicki and Frank J. DiMarco, join in PHS's opposition to Plaintiffs' Motion. See Doc. No. 27. Defendant, Richard Grady, M.D., and proposed new Defendants, Gloucester County Board of Chosen Freeholders, Gloucester County Department of Correctional Services, Gloucester County Sheriff's Department, John Tevoli and W. Stanley Nunn, have not filed nor joined in the opposition to Plaintiffs' Motion.
Pursuant to Fed. R. Civ. P. 15(a), leave to amend pleadings "shall be freely given when justice so requires." Leave shall be freely given in the absence of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies in previous amendments, undue prejudice or futility of the amendment. Foman v. Davis, 372 U.S. 178, 182 (1962); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). "[A]bsent substantial or undue prejudice, denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment." Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (quoting Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir. 1994)). An amendment sought pursuant to Rule 15(a) shall be permitted unless it would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
In determining the futility of an amendment, the Court "applies the same standard of legal sufficiency as applies under Rule 12(b)(6)." Medpointe Healthcare, Inc. v. Hi-Tech Pharmacal Co., Inc., 380 F.Supp.2d 457, 462 (D.N.J. 2005) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d. Cir. 1997)); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). The Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); Brown v. Phillip Morris, Inc., 250 F.3d 789, 796 (3d Cir. 2001). A motion to dismiss may be granted, or in this case a proposed amendment deemed futile, only if it is clear that "if, in view of what is alleged, it can reasonably be conceived that the plaintiffs . . . could, upon a trial, establish a case which would entitle them to . . . relief." Phillips, 515 F.3d at 233 (quoting Bell Atlantic Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1969 n. 8 (2007)).
I. Plaintiffs' Proposed Joinder of the New Defendants
Persons may be joined in one action as defendants if there is any right to relief asserted against them jointly, severally, or in the alternative, arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. Fed. R. Civ. P. 20(a)(2). Permissive joinder falls within the discretion of the court and is to be liberally granted. Snodgrass v. Ford Motor Co., Civil No. 96-1814(JBS), 2002 WL 485688 at *2 (D.N.J. 2002) (citing Miller v. Hygrade Food Products Corp., 2002 F.R.D. 142, 144 (E.D.Pa. 2001)). Based upon the allegations in Plaintiffs' proposed Complaint, the claims against the new Defendants arise out of the same occurrences as the claims alleged in Plaintiffs' First Amended Complaint. The claims also involve common questions of law and fact. Therefore, the Court finds that the proposed joinder of the new Defendants is permissible.
II. Plaintiffs' Claim For Violation of Their Due Process Rights
The Court denies without prejudice Plaintiffs' claim that the new Defendants violated their due process rights under the Fourteenth Amendment. The Court finds that Plaintiffs did not adequately plead facts and a legal basis to support this relief. As noted, to determine whether a proposed amendment is futile the Court applies the same standard as a motion to dismiss under Rule 12(b)(6). Medpointe, 380 F.Supp.2d at 462. In Bell Atlantic Corp. v. Twombly, supra, the Supreme Court addressed the pleading requirements of Rule 8(a)(2) in the context of a motion to dismiss under Rule 12(b)(6). Pursuant to Fed. R. Civ. P. 8(a)(2), a complaint must contain "a short plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court stated that the threshold requirement of Rule 8(a)(2) is "that the 'plain statement' possess enough heft to 'show that the pleader is entitled to relief.'" Twombly, 127 S.Ct. at 1966. The Court also held that a complaint does not have to include detailed factual allegations, however, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65. Further, "[w]hile Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because 'it strikes a savvy judge that actual proof of those facts is improbable,' the '[f]actual allegations must be enough to raise a right to relief above the speculative level.'" Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1265). In Phillips, the Third Circuit interpreted Twombly as holding that, "'a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Id.
Plaintiffs' claim for violation of their Fourteenth Amendment substantive due process rights fails to meet the requisite pleading requirements under Rule 8(a)(2) and Twombly. Plaintiffs' Complaint contains only conclusory labels and no facts to support their entitlement to relief. In assessing whether Plaintiffs' proposed due process claims are futile, the Court is left to speculate as to the facts Plaintiffs rely upon. Plaintiffs' proposed Complaint only specifically mentions an alleged violation of their Fourteenth Amendment rights in a paragraph entitled "Jurisdiction." Only one count of the proposed Complaint even vaguely addresses any alleged constitutional violation. Count four, paragraph two, alleges an omnibus claim that all Defendants violated the rights of the plaintiffs under the Constitution of the United States, 42 U.S.C. 1983, in that the County of Gloucester, its agents[,] servants and[/]or employees, named herein and to be named as discovery proceeds, as matters of ...