United States District Court, D. Kansas
MATTHEW T. GARDINER, Plaintiff,
BILL MCBRYDE, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on plaintiff's Objection to
Magistrate Judge James P. O'Hara's Report and
Recommendation (Doc. 108 objecting to Doc. 106) and
plaintiff's Motion for Leave to File Second Amended and
Supplemented Complaint (Doc. 97). Plaintiff objects to Judge
O'Hara's recommendation to deny, in part, his Motion
for Leave to Amend his Complaint. And, plaintiff also asks
the court to allow the amendment or instruct Judge O'Hara
to hear oral arguments on the issue. Doc. 108. As explained
below, the court concludes that Judge O'Hara did not err
in his recommendation.
Factual and Procedural Background
a state inmate proceeding pro se,  brings this
action under 42 U.S.C. § 1983, against the Seward County
Board of Commissioners and several individuals affiliated
with the Seward County, Kansas Jail. In his First Amended
Complaint,  plaintiff alleges defendants used
excessive force and denied him appropriate medical care,
including mental health treatment, during his time at the
facility. Doc. 25. The Complaint describes one instance of
“hog-tying” plaintiff, kicking his head, and
driving their knees into his ribs. Id. at
¶¶ 57-68. Plaintiff alleges that after “the
beating, ” he was left “hog-tied” in a
holding cell for several hours before one of the defendants
removed the restraints and transported him to the hospital
for medical treatment. Once there, plaintiff alleges, he was
denied adequate medical care. Id. at ¶¶
70-74. In their Answer, defendants deny these allegations and
claim plaintiff verbally threatened and physically attacked
jail personnel. Doc. 46 at ¶¶ 57-72. They admit
officers restrained him, connecting handcuffs behind his back
to leg shackles at his ankles, because he exhibited violent
behavior with an intent to harm himself or others.
Id. at ¶ 60. They contend he was released from
restraints after several minutes, and upon his request, he
was transported to the hospital. Id. at ¶¶
72-73. The doctor noted plaintiff's chest X-ray showed a
“suggestion of contusion and hairline nondisplaced
fracture” of one of plaintiff's ribs. Id.
at ¶ 74. After his examination, plaintiff returned to
the jail facility. Id. at ¶ 80.
filed his original Complaint on June 11, 2015 (Doc. 1) and
filed his First Amended Complaint on April 11, 2016 (Doc.
25). Both Complaints allege just one incident of excessive
force. Judge O'Hara held a scheduling conference by
telephone and issued his Scheduling Order on January 8, 2018.
He established a deadline for filing motions to amend on
February 12, 2018, and a discovery deadline of July 9, 2018.
Id. Plaintiff did not allege a second incident of
excessive force during this period of time. Also, he never
asserted any intention to amend to his First Amended
Complaint during any of the telephone status conferences the
parties conducted with the court before the deadline for
amending pleadings had expired. Docs. 58, 59, 72. On August
30, 2018, after the deadline for amending the pleadings had
passed, plaintiff filed a motion seeking leave to file
another amended complaint-one that would: (1) add to his
current allegations; and (2) include new allegations of a
second incident of excessive force occurring two days after
the first one. Doc. 97.
October 5, 2018, Judge O'Hara issued a Report and
Recommendation. It recommended that the district court grant
plaintiff's unopposed request to modify his current
claims, but deny plaintiff's request to add new
allegations of a second incident of excessive force because
it was advanced in an untimely fashion, unduly prejudicial,
and futile. Doc. 106. Plaintiff objected to Judge
O'Hara's recommendation to deny him leave to assert
some aspects of his proposed amendments because, he asserts,
discovery has produced new information that prompted his
amendment. Doc. 108. Alternatively, he alleges the second
incident is already asserted in his First Amended Complaint.
Id. Defendants have filed a response opposing
plaintiff's Objection. Doc. 113. Defendants ask the court to
affirm Judge O'Hara's recommendation because
plaintiff has not made the requisite showing for an amendment
under Federal Rules of Civil Procedure 15 and 16.
Standard of Review
Rule of Civil Procedure 72(a) permits a party to present
specific, written objections to a magistrate judge's
order. When reviewing a magistrate judge's order deciding
nondispositive pretrial matters, the district court applies a
“clearly erroneous or contrary to law” standard
of review. See First Union Mortg. Corp. v. Smith,
229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil
Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th
Cir. 1988)); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a). Under this clearly erroneous standard, the district
court does not conduct a de novo review of the magistrate
judge's factual findings; instead, the district court
must affirm a magistrate judge's order unless a review of
the entire evidence leaves it “with the definite and
firm conviction that a mistake has been committed.”
Ocelot Oil Corp., 847 F.2d at 1464. In contrast,
“the contrary to law” standard permits the
district court to conduct an independent review of purely
legal determinations made by the magistrate judge. Sprint
Commc'ns Co. L.P. v. Vonage Holdings Corp., 500
F.Supp.2d 1290, 1346 (D. Kan. 2007) (citations omitted). A
magistrate judge's order is contrary to law if it
“fails to apply or misapplies relevant statutes, case
law or rules of procedure.” Walker v. Bd. of Cty.
Comm'rs of Sedgwick Cty., No. 09-1316-MLB, 2011 WL
2790203, at *2 (D. Kan. July 14, 2011) (quotation omitted).
The court applies this governing standard to plaintiff's
Legal Standard Governing Amendment of Pleadings
party seeks to amend a pleading after the scheduling
order's deadline for amending the pleadings has expired,
the court first applies Rule 16(b)(4) and determines whether
the party has shown good cause. See Fed. R. Civ. P.
16(b)(4); Gorsuch, Ltd. v. Wells Fargo Nat'l Bank
Ass'n, 771 F.3d 1230, 1240-41 (10th Cir. 2014). To
meet the “good cause” requirement of Rule
16(b)(4), a plaintiff must show he could not have met the
scheduling order deadline to amend pleadings despite
“diligent efforts.” Gorsuch, 771 F.3d at
1240. The “good cause requirement may be satisfied, for
example, if a plaintiff learns new information through
discovery or if the underlying law has changed.”
Id. Ultimately, the decision to modify a scheduling
order is within the court's sound discretion. Rimbert
v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir.
2011). The court cannot reach a Rule 15(a) analysis without
first finding good cause under Rule 16 for modifying the
scheduling order. Gorsuch, 771 F.3d at 1241.
15(a) provides that leave to amend the pleadings “shall
be freely given when justice so requires.” Fed.R.Civ.P.
15(a). However, the court may deny leave to amend on the
grounds of undue delay, bad faith or dilatory motive by the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party, or
futility of the proposed amendment. Minter v. Prime
Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). The
decision to grant leave to amend the pleadings under
Fed.R.Civ.P. 15(a) is within the district court's sound
discretion. Id. (quoting Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330 (1971)).
seeks leave to amend his First Amended Complaint for two
reasons: (1) to add details to current allegations of
excessive force; and (2) to include an entirely new section
describing a second incident of excessive force. Doc. 97-5 at
23. Judge O'Hara did not err when he recommended that the
court deny plaintiff's proposed amendment asserting new
allegations because plaintiff has not shown good cause for
seeking leave after the deadline. Also, Judge O'Hara
correctly concluded that plaintiff unduly delayed his request
for leave to amend, the amendment unduly prejudices
defendants, and the amendment consists of allegations which
are futile. Each of these reasons provides an independent
reason to deny plaintiff's Motion to Amend to assert new
allegations of a second incident of excessive force. For the
reasons explained, the court affirms Judge O'Hara's
reasoning and denies plaintiff's request for leave to
amend in part.