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Gardiner v. McBride

United States District Court, D. Kansas

December 21, 2018

BILL MCBRYDE, et al., Defendants.


          Daniel D. Crabtree United States District Judge.

         This 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.

         I. Factual and Procedural Background

         Plaintiff, a state inmate proceeding pro se, [1] 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, [2] 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.

         Plaintiff 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.

         On 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.[3] 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. Id.

         II. Standard of Review

         Federal 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 Objection here.

         III. Legal Standard Governing Amendment of Pleadings

         When a 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.

         Rule 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)).

         IV. Analysis

         Plaintiff 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.

         A. ...

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