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Gardiner v. McBryde

United States District Court, D. Kansas

October 5, 2018

MATTHEW T. GARDINER, Plaintiff,
v.
BILL MCBRYDE, et al., Defendants.

          REPORT AND RECOMMENDATION

          JAMES P. O'HARA U.S. MAGISTRATE JUDGE.

         Plaintiff, a state inmate proceeding pro se, brings this action under 42 U.S.C. § 1983, alleging he was subjected to excessive force and denied appropriate medical care while incarcerated at the Seward County, Kansas Jail. Shortly before the scheduled final pretrial conference (and after discovery had closed), plaintiff filed a motion for leave to amend his complaint (ECF No. 97).[1] Portions of his motion were ruled during the September 5, 2018 conference (which, for practical reasons, the court converted to a status conference).[2] This report addresses the remaining portions of plaintiff's motion, specifically, (1) a request to add factual allegations detailing a new incident of excessive force, and (2) a request to modify plaintiff's current claims for relief (based on facts previously alleged) to account for information learned through discovery and plaintiff's changed understanding of the law. Because the undersigned U.S. Magistrate Judge, James P. O'Hara, concludes plaintiff's request to add allegations of a second incident of excessive force is untimely, unduly prejudicial, and futile, he recommends the presiding U.S. District Judge, Daniel D. Crabtree, deny that portion of the motion.[3] But because defendants have not opposed plaintiff's request to modify his current claims, the undersigned recommends Judge Crabtree grant that portion of the motion.

         I. Request to Add Allegations of a Second Incident of Excessive Force

         In his first amended complaint, plaintiff alleged defendants used excessive force when they kicked him repeatedly and “hog-tied” him in a jail holding cell.[4] He also alleged defendants denied him appropriate medical care (including mental-health care) during his incarceration at the jail, which spanned June 14-27, 2014.[5] In the instant motion, plaintiff seeks to add 24 new paragraphs detailing a second incident of beating and hog-tying that allegedly occurred in the jail conference room on June 16, 2014.[6]

         Under Fed.R.Civ.P. 15(a)(2), once a responsive pleading has been filed and 21 days have passed, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Rule 15 dictates that the court “freely give leave when justice so requires.”[7] When the deadline set in the scheduling order for amending pleadings has passed, however, Fed.R.Civ.P. 16(b)(4) also is implicated.[8] Rule 16(b)(4) provides that a scheduling order may be modified “only for good cause.” Thus, the Tenth Circuit has directed courts to use “Rule 16's good cause requirement as the threshold inquiry to consider whether amendments should be allowed after a scheduling order deadline has passed.”[9] If the court finds good cause lacking, it need not reach the Rule 15(a) analysis.[10]

         In this case, the scheduling order set February 12, 2018, as the deadline for amending pleadings.[11] Because plaintiff didn't file the instant motion until August 2018, the court will begin its analysis by applying Rule 16's good-cause standard.

         Good Cause.

         To establish “good cause” under Rule 16(b)(4), plaintiff must show he could not have met the scheduling-order deadline for amending pleadings despite his “diligent efforts.”[12] In making this showing, plaintiff “must provide an adequate explanation for any delay.”[13] “Rule 16's good cause requirement may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed. If the plaintiff knew of the underlying conduct but simply failed to raise tort claims, however, the claims are barred.”[14] Ultimately, whether to modify the scheduling order lies within the court's sound discretion.[15]

         Plaintiff has not explained his extensive delay in raising the new allegations of hog-tying that allegedly occurred in the jail conference room on June 16, 2014.[16] Instead, plaintiff makes the wholly disingenuous argument that the second incident actually was alleged in his first amended complaint, and that he now only seeks to add details to his claims. The undersigned flatly rejects plaintiff's assertion. First, plaintiff's first amended complaint clearly detailed facts of a single hog-tying incident in chronological order. For example, paragraph 57 states defendants “entered holding cell #1 . . . grabbed the plaintiff and threw him to the concrete floor causing extreme pain and extreme panic.”[17] Paragraph 58 continues, “While the plaintiff was on the floor, face down, Defendant Gallardo held plaintiffs' ankles and forced his legs to bend until his feet were touching his buttocks.”[18]Plaintiff's assertion in his reply brief that paragraph 57 described “events that occurred on both June 14 and June 16, 2014” but that paragraph 58 described “events that occurred only on June 16, 2014, ” simply does not make sense.[19] Second, plaintiff's first amended complaint consistently referred to a “beating” or “assault” by defendants in the singular form.[20] Thus, even construing plaintiff's first amended complaint liberally, the court does not read it to allege, let alone put defendants on notice of, a second hog-tying incident occurring two days after the first in a separate area of the jail.[21]

         Plaintiff filed his original complaint more than three years ago, on June 11, 2015, and did not mention any second incident of excessive force. Plaintiff filed his first amended complaint on April 11, 2016, [22] and again did not mention anything about a second incident of excessive force. Plaintiff also let the February 12, 2018 scheduling-order deadline for amending pleadings pass without raising, in any filing or in any discussion with the court or defense counsel, his new allegations of excessive force. In fact, the first time the court was alerted to plaintiff's new allegations was in the parties' proposed pretrial order, e-mailed to the undersigned's chambers on August 23, 2018. This was more than four years after the incident allegedly occurred, three years after plaintiff filed suit, six months after the deadline for amending the pleadings, and six weeks after discovery had closed.

         Plaintiff has not demonstrated that, despite “diligent efforts, ” he was unable to raise his allegations of a second excessive-force incident by the February 12, 2018 deadline. Because plaintiff himself allegedly experienced the incident, he certainly would have known about it in 2014. Although in his reply brief plaintiff asserts he did not receive discovery from defendants until after the amendment deadline, plaintiff does not suggest that specific discovery received enabled him to bring, for the first time, allegations of a second hog-tying incident.[23] This is not a situation, for example, in which plaintiff learned new information to support this claim through discovery. The Tenth Circuit has made clear that in situations like the present, where “the plaintiff knew of the underlying conduct but simply failed to raise the claims, ” good cause is not established under Rule 16.[24]

         Because plaintiff has not established good cause for extending the scheduling-order amendment deadline, the court could stop its analysis here. However, should Judge Crabtree decide to consider the appropriateness of amendment under Rule 15(a) as well, the undersigned recommends that leave to amend be denied for the following additional reasons.

         As mentioned above, Rule 15(a) anticipates the liberal amendment of pleadings. Nonetheless, a court may deny leave to amend 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.”[25] Defendants argue plaintiff acted with undue delay in seeking to amend, that they would be unduly prejudiced by amendment, and, in any event, that the proposed amendment to add new allegations would be futile. The undersigned agrees with defendants in each of these respects.

         Undue Delay.

         When considering whether a party has unduly delayed, the Tenth Circuit has directed courts to focus primarily on the reasons for the delay.[26] For example, if the movant was aware for some time of the facts on which the amendment is based, the court may properly deny leave to amend.[27] Moreover, the “longer the delay, ” the more likely the court will deny a motion for leave to amend.[28] Rule 15(a)'s undue-delay analysis is similar to the good-cause analysis discussed above: “denial of leave to amend is appropriate when the party filing the motion has no adequate explanation for the delay.”[29]As stated above, plaintiff was aware for some time of the facts upon which the proposed amendment is based; yet he waited until the days before the final pretrial conference to bring the issue of a potential amendment to the court's attention. For the same reasons set forth in the discussion of good cause above, the court should find plaintiff has unduly delayed.

         Undue Prejudice.

         The Tenth Circuit has determined that prejudice to the non-moving party is the most important factor in deciding a motion to amend the pleadings.[30]“‘Rule 15 . . . was designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result.'”[31] “Prejudice under Rule 15 means undue difficulty in defending a lawsuit because of a change of tactics or theories on the part of the other party.”[32] “Courts typically find prejudice only when the amendment unfairly affects the defendants ‘in terms of preparing their defense to the amendment.'”[33]

         Permitting plaintiff to add a completely new, never-before-referenced allegation of excessive force, at this advanced stage of the litigation, would clearly cause defendants undue difficulty in defending this lawsuit. Despite plaintiff's characterization of the proposed amendments as referencing “the same defendants, events, and claims with a more detailed chronology, ”[34] the proposed second amended complaint actually seeks to add a number of substantive allegations in the litigation. Thus, this is not a case in which defendants have “defended the lawsuit on this basis from the beginning.”[35] If the amendment were permitted, a new round of discovery would be necessary and trial in this three-year-old case would be further delayed. Thus, the court should find defendants would be unduly prejudiced in defending this suit if plaintiff's new allegations were permitted.

         Futility.

         Finally, defendants assert the addition of the new allegations of excessive force occurring in 2014 would be futile. “A proposed amendment is futile if the amended complaint would be subject to dismissal.”[36] Defendants argue that new claims based on an incident that occurred on June 16, 2014, would be subject to dismissal because the applicable two-year statute of limitations for claims brought under 42 U.S.C. § 1983 has run.[37]

         Plaintiff first responds that “[t]he claims and the basis for those claims in the proposed amendment are the same incidents and policies plaintiff set forth in the previous amendment and are not ‘new claims.'”[38] However, with respect to the proposed allegations of a hog-tying incident that occurred in the jail conference room on June 16, 2014, this argument was rejected above.

         Plaintiff next argues that even if his proposed amendments assert new claims, these new claims would not be subject to dismissal because they relate back to the first amended complaint under Fed.R.Civ.P. 15(c). “In limited circumstances, Rule 15(c) saves an otherwise untimely amendment by deeming it to ‘relate back' to the conduct alleged in the timely original complaint.”[39] Specifically, Rule 15(c)(1)(B) provides that an amendment relates back when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” “This provision is intended to give the defendant ‘fair notice that the litigation is arising out of a specific factual situation.'”[40] Thus, unless the original complaint “fairly gave the defendant notice” of the proposed new claim, the new claim will not relate back to the previous pleading.[41] When an amendment raises “new and discrete allegations that were not pled in [the] original complaint, ” the amended pleading does not relate back.[42]

         In this case, plaintiff's proposed second excessive-force claim is based on new factual allegations of force on a different date and in a different location than the excessive force allegations set out in his first amended complaint.[43] As discussed above, even reading plaintiff's first amended complaint liberally, it cannot be deemed to have put defendants on notice of an incident of excessive force on June 16, 2014 in a jail conference room.[44]Although the first amended complaint alleged excessive force on the day of plaintiff's arrest (June 14, 2014) in the holding cell, “[a] new pleading cannot relate back if the effect of the new pleading is to fault the defendants for conduct different from that identified in the original complaint, even if the new pleading shares some elements and some facts in common with the original claim.”[45] Therefore, plaintiff's proposed new claim would not relate back and would be subject to dismissal, such that the proposed amendment should be denied on the basis of futility.

         Third, plaintiff argues in the alternative that the statute of limitations has been equitably tolled because he was prevented from bringing new claims by his incarceration, frequent transfers, limited education, and lack of legal training.[46] Plaintiff also argues the doctrine of equitable estoppel should prevent defendants from asserting a statute-of-limitations defense because defendants fraudulently concealed information.[47] Because these arguments were raised for the first time in plaintiff's reply brief, they should not be considered.[48] In any event, the undersigned finds the ...


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