NOTICE:

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

ORDER

Ricky Lee Broyles, a pro se Michigan prisoner, appeals a district court order dismissing his civil rights suit in part, granting summary judgment in part, and striking his amended complaint. His appeal has been referred to a panel of this court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon review, the panel concludes that oral argument is not needed. Fed. R. App. P. 34(a).

Broyles filed a civil rights complaint under 42 U.S.C. § 1983 against Correctional Medical Services, Inc. ("CMS") and C. Perog, in her official and individual capacity, alleging deliberate indifference to his serious medical needs and seeking compensatory and punitive damages. Broyles asserted that the defendants failed to timely and adequately provide him with medical assistance between August and September 2005, resulting in progressive detachment of his retina, degeneration, and irreparable damage to his vision.

CMS moved to dismiss Broyles's complaint under Fed. R. Civ. P. 12(b)(6) for failure to exhaust his administrative remedies and for failure to state a claim upon which relief could be granted. Perog moved for summary judgment, arguing that she was entitled to immunity under the Eleventh Amendment to the extent Broyles sued her in her official capacity, and that she was entitled to qualified immunity to the extent Broyles sued her in her individual capacity because he failed to establish a constitutional violation. Broyles opposed the defendants' motions. Thereafter, Broyles filed an amended complaint asserting claims for deliberate indifference against Tamerla Hamilton, R.N.; Amy S. Meyer, R.N.; and John Doe, the Medical Service Supervisor.

A magistrate judge recommended granting CMS's motion to dismiss, granting Perog's motion for summary judgment, and striking Broyles's amended complaint. Over Broyles's objections, the district court approved and adopted the magistrate judge's recommendation, granted CMS's motion to dismiss, granted Perog's motion for summary judgment, and struck Broyles's amended complaint. Alternatively, the district court found that any amendment to Broyles's complaint would be futile, as his allegations established negligence at most.

Broyles appealed. The district court granted Broyles's motion to proceed in forma pauperis on appeal. Broyles argues on appeal that the district court erred in dismissing CMS, granting summary judgment to Perog, and striking his amended complaint. Additionally, Broyles moves for the appointment of counsel and to proceed in forma pauperis on appeal.

Broyles argues that the district court erred in granting CMS's motion to dismiss. Broyles asserts that CMS directly participated in denying him timely medical care; therefore, it was individually liable and the theory of respondeat superior applied was irrelevant. Additionally, Broyles asserted that CMS's failure to discipline personnel who ignored its policies showed indifference or tacit authorization of the practices; thus, he had established a custom or policy which led to a violation of his constitutional rights.

We review de novo a district court's decision to grant a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Lambert v. Hartman, 517 F.3d 433, 438-39 (6th Cir. 2008), petition for cert. filed, 77 U.S.L.W. 3252 (Oct. 14, 2008) (No. 08-500) [cert. denied, 129 S. Ct. 905 (U.S. 2009)]. "A motion to dismiss for failure to state a claim is a test of the plaintiff's cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations." Id. at 439 (internal citation omitted). Thus, we construe the complaint in the light most favorable to the non-moving party, and accept all of the factual allegations as true. Id. Nonetheless, a plaintiff's claim must be based upon "more than bare assertions of legal conclusions." League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).

A private corporation cannot be held liable under § 1983 on the basis of respondeat superior or vicarious liability. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996). Rather, the plaintiff must establish a policy or custom that caused the constitutional violation. Ford v. County of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008). Broyles alleged that CMS failed to properly train its personnel on written CMS policies, failed to discipline personnel who violated its written policies, and violated its written policies by permitting medical decisions to be made based upon costs. Broyles's bare allegations of a custom or policy, unsupported by any evidence, are insufficient to establish entitlement to relief. League of United Latin Am. Citizens, 500 F.3d at 527. Accordingly, the district court properly dismissed Broyles's claims against CMS for failure to state a claim upon which relief could be granted.

Broyles also argues that the district court erred in granting Perog summary judgment. Broyles asserts that Perog failed to place him on the clinic list as the clinic staff directed, Perog failed to refer him to the Medical Services Provider after he lodged three complaints, and Perog made the decision that his medical problem was non-emergent.

We review a district court's grant of summary judgment de novo. Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when the evidence presented shows "'that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. (quoting Fed. R. Civ. P. 56(c)). The moving party bears the burden of showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (internal citation and quotation omitted).

Qualified immunity provides that government officials acting within their discretion are generally shielded from liability for civil damages as long as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). To determine whether a defendant is entitled to qualified immunity, a court considers: (1) whether the defendant violated a constitutional right; and (2) whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Deliberate indifference to the serious medical needs of prisoners is prohibited by the Eighth Amendment as such indifference constitutes the "unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 102-04, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Whether a defendant acted with deliberate indifference has both a subjective and an objective component. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004). Under the objective component, the plaintiff must establish that he had a serious medical need. Id. Under the subjective component, the plaintiff must establish that the defendant knew of or disregarded an excessive risk to inmate health or safety. Id. Moreover, deliberate indifference requires more than mere negligence or medical malpractice. Ford, 535 F.3d at 495. There is no evidence that Perog was aware that Broyles had a serious medical need or that she disregarded any need. Accordingly, the district court properly granted summary judgment to Perog.

Finally, Broyles argues that the district court abused its discretion in striking his amended complaint pursuant to Rule 21 of the Federal Rules of Civil Procedure, rather than permitting amendment of his complaint without leave of the court under Rule 15(a), given that no responsive pleadings had been filed at the time he submitted the complaint.

This court reviews a district court's decision to strike an amended complaint for an abuse of discretion. Evans v. Pearson Enters., Inc., 434 F.3d 839, 853 (6th Cir. 2006). However, "[w]hen the district court refuses the plaintiff's request for leave to amend her complaint on grounds of futility, this court reviews de novo because the decision is based on a legal conclusion." Id. Under Rule 15(a)(1), a party may amend the complaint once as a matter of course before being served with a responsive pleading. Fed. R. Civ. P. 15(a)(1); see Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 421 (6th Cir. 2000) (noting that Rule 15(a) "gives plaintiffs an absolute right to amend their complaint one time before a 'responsive pleading' is served").

In this case, the district court determined that, even though no responsive pleading had been filed, because Broyles sought to join additional defendants to the action, Rule 21 required Broyles to seek leave to amend his complaint. Because Broyles failed to seek leave with the court, the district court struck the amended complaint. To reach the conclusion that Rule 21 required Broyles to seek leave to file an amended complaint, the district court relied on a case from the Seventh Circuit, Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993). Moore determined that, "[a]lthough Rule 15(a) generally permits the plaintiff to amend his complaint once as a matter of course before a responsive pleading is served, . . . [a] plaintiff's requested amendment require[s] leave from the court" when it seeks "to assert claims against additional defendants." Moore, 999 F.2d at 1128. But see Summit Office Park, Inc. v. U.S. Steel Corp., 639 F.2d 1278, 1283 n.11 (5th Cir. 1981) (noting the Fifth Circuit's en banc decision, which held that "a plaintiff could amend his complaint to add defendants under Rule 15(a) without seeking leave of court under Rule 21"). This Circuit has not determined whether Rule 21 or Rule 15 controls the amendment of a pleading where the amendment seeks to add parties to the action. However, this Court has noted that Rule 15(a) gives plaintiffs an "absolute right" to amend a complaint before a responsive pleading is served, Pertuso, 233 F.3d at 421, and has emphasized that "Rule 15 plainly embodies a liberal amendment policy," Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002). Therefore, Rule 15(a) permits a plaintiff to file an amended complaint, without seeking leave from the court, at any time before a responsive pleading is served. Fed. R. Civ. P. 15(a)(1)(A) ("A party may amend its pleading once as a matter of course . . . before being served with a responsive pleading. . . ."). Accordingly, we conclude that the district court abused its discretion in striking the amended complaint for failure to seek leave from the court.

The district court also abused its discretion in determining that it could reject the amended complaint on the basis that the amendment would be futile. If a responsive pleading has been filed, a party may amend its pleading "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Although the rule states that a court "should freely give leave when justice so requires," courts have established that a "district court may deny a plaintiff leave to amend his or her complaint . . . when the proposed amendment would be futile." Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006). However, because Broyles was not required to seek leave, the fact that the amendment would be futile did not provide a basis for the district court to strike Broyles' amended complaint. Accordingly, the district court erred in striking Broyles' amended complaint.

Broyles also moves for appointment of counsel on appeal. Because we remand the case to the district court for further proceedings, we deny Broyles' request for appointment of counsel on appeal as moot. Further, Broyles' motion for in forma pauperis status also is moot, as the district court granted him in forma pauperis status for purposes of this appeal.

For the reasons set forth above, we affirm the district court in part and reverse in part. While the district court correctly granted CMS's motion to dismiss and Perog's motion for summary judgment, it erred in striking Broyles' amended complaint. Accordingly, we REVERSE the judgment of the district court in part and REMAND with instructions to allow the amended complaint. The motion for appointment of counsel and for in forma pauperis status are denied as moot. Rule 34(j)(2)(C), Rules of the Sixth Circuit.