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Dartez v. Peters

United States District Court, D. Kansas

July 24, 2019

SAMUEL LEE DARTEZ, II, Plaintiff,
v.
RICK PETERS, et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         On May 30, 2019, the Court convened an in-person motion hearing to address Plaintiff's Motion for Leave to Amend (ECF No. 191) and Plaintiff's Motion to Enforce Subpoena (ECF No. 255). Plaintiff appeared through counsel, David Seely and Brian Vanorsby. Defendants Rick Peters, Robert Ware, Christopher Beas, Daniel W. Diloreto, Brian S. Hedgecock, Christopher P. Mai, Colby J. Markham, David Ruble, Alex R. Taylor and Jason S. Bailey appeared through counsel, Robert Turner, IV. Defendants Robert W. Dierks, Mark French, and Brian Johnson appeared through counsel, David Cooper and Briana Cowell. The Kansas Highway Patrol appeared through counsel, Tammie Lord.

         After careful of review of the parties' written briefs and attached exhibits (ECF Nos. 191, 216, 229, 230, 239, 240, 241, 255, 256, and 262), and hearing arguments of counsel, the Court orally GRANTED both Motions during the hearing (see ECF No. 275). The previously-announced ruling of the Court is now memorialized below.

         I. Background[1]

         A. Nature of the Case

         This is a civil rights action where Plaintiff alleges law enforcement brutality. The factual background has been explored in detail in earlier opinions[2] and will not be belabored here. Summarily, Plaintiff Samuel Dartez claims various Defendants, who are members of the Kansas Highway Patrol (“KHP”) tactical team and the Riley County Police Department (“RCPD”), either participated in, or were present when, members of the KHP severely beat him during his arrest on November 13, 2014. Following the beating, Plaintiff further claims members of the RCPD failed to obtain medical treatment for him; instead, they drove him straight to the Riley County Jail for booking following his arrest.

         B. Procedural Posture

         Plaintiff initially filed this matter on November 12, 2015, acting pro se. He sued the State of Kansas, the KHP, the RCPD, and the Morris County Sheriff's Department, as well as a number of individual and “John Doe” law enforcement officers. Early in the case, the Court ordered Plaintiff to amend his complaint to name proper defendants and set forth sufficient facts. (ECF No. 10, June 2, 2016.) Plaintiff did so, still acting pro se, and removed the State and named agencies from the suit. (ECF No. 11, June 30, 2016.) Pursuant to order by District Judge Eric F. Melgren, the Morris County Sheriff's Department and its deputies were later dismissed from the case, and Defendants Peters and Ware were ordered to provide full names and service addresses of John Does 1-7. (Mem. & Order, ECF No. 81, July 19, 2017.) After being appointed counsel (Order, ECF No. 92, Aug. 11, 2017), Plaintiff was permitted to again amend his complaint, and filed his Second Amended Complaint with the assistance of counsel on March 2, 2018. (Order, ECF No. 149; 2nd Am. Compl., ECF No. 150).

         After resolution of multiple dispositive motions, an appeal unrelated to the current issues, [3] and a short stay related to one Defendant's military service, [4] the undersigned entered a Scheduling Order (ECF No. 180) on September 27, 2018, initially setting a discovery deadline of June 1, 2019 and a deadline to file any motions to amend the pleadings by November 30, 2018. Plaintiff filed his current Motion to File a Third Amended Complaint on the deadline of November 30, 2018. (Motion, ECF No. 191.) Because a settlement conference was set in late February 2019, the Court postponed consideration of the motion. After the settlement conference was unsuccessful, the parties sought and received modifications to the schedule on April 19, 2019 (ECF No. 264). Pursuant to those changes, the discovery deadline was reset to September 20, 2019, among other modifications. Following the May 30 hearing and oral ruling on the pending motions, the undersigned held a status conference on July 9, 2019, during which the discovery deadline was extended to December 20, 2019. With this background in mind, the Court turns to Plaintiff's Motion.

         II. Plaintiff's Motion for Leave to Amend (ECF No. 191)

         Although Plaintiff filed a single motion, because there are two pools of defendants (the KHP defendants and the RCPD defendants), two sets of Responses and Replies were filed. As previously noted, the briefing considered by the Court includes ECF Nos. 191, 216, 239, and 241 (Plaintiff's motion and supporting briefs); ECF No. 229 (KHP Defendants Bailey, Beas, DiLoreto, Hedgecock, Mai, Markham, Peters, Ruble, Taylor and Ware's Response in Opposition); and ECF No. 230 (RCPD Defendants Dierks, French, and Johnson's Response in Opposition). Prior to the May 30 hearing, the Court thoroughly reviewed the parties' briefing, and the parties' positions are summarized here.

         A. Parties' Arguments

         1. Plaintiff's Position

         Plaintiff seeks to amend his Complaint for the second time to add six new defendants and achieve three primary goals:

a) Plaintiff asks to “clarify” his claims related to the KHP's failure to train its Special Response Team (“SRT”), and to add the proper defendants related to the claim, including existing defendant KHP Captain Rick Peters, and four proposed new defendants: Mark Bruce (Superintendent of KHP), Jason Devore (West Region KHP Commander), Robert Keener (KHP Captain overseeing the SRT), and Christopher Bowling (KHP Lieutenant and SRT member).
b) Plaintiff seeks to add a previously-undisclosed KHP SRT member who was involved in his arrest, Trooper Perry Frey.
c) Plaintiff seeks to add a RCPD officer, Detective Joseph Ehrlich, who drove Plaintiff from the scene of his arrest to the Riley County Jail.

         Each objective of Plaintiff's motion is addressed in turn.

         a. Failure to Train

         In Plaintiff's First Amended Complaint (ECF No. 11) and Second Amended Complaint (ECF No. 150), he does not delineate “failure to train” as a specific separate count or claim. But in both pleadings, he requests as relief an injunction requiring the KHP officers to undergo proper training regarding use of force and to be suspended until they complete such training. (See 1st Am. Compl., ECF No. 11 at 5; 2nd Am. Compl., ECF No. 150 at 9.)

         Although all parties agree the statute of limitations on Plaintiff's original claims has expired, [5] Plaintiff contends the addition of this request as a formal claim, and the addition of the KHP officers who would be responsible for such training, should relate back to the date of the original Complaint under Fed.R.Civ.P. 15(c)(1)(B). And, because Defendant Peters has been named in the case since its original filing, Plaintiff argues Peters has been given fair notice of the claims and it arises out of the same conduct, transaction or occurrence so the claim again him should relate back under Rule 15(c)(1)(B).

         Finally, Plaintiff contends the addition of the newly-proposed KHP defendants (Bruce, Devore, Keener, and Bowling) should relate back under Rule 15(c)(1)(C), because they were all provided adequate notice and regular updates on the status of the case. Bruce and Bowling received regular updates, according to the KHP's privilege log (ECF No. 216-8, Ex. 8), as early as October 6, 2016. Keener and Devore were deposed in this case (ECF No. 239, Ex. C), and testified they received email updates about the lawsuit. Citing the D. Kan. case of Coleman v. Apple Eight Hosp. Mgmt., Inc., [6] Plaintiff argues there is no evidence he made a deliberate choice or tactical decision to sue Peters and not Bruce, Devore, Keener, and Bowling. Instead, he contends their prior omission from this case was due to a misunderstanding of the KHP's operational structure. (Reply, ECF No. 239 at 23.)

         By illustration, Plaintiff sought production of the Kansas Bureau of Investigation's file regarding his arrest, first while acting pro se in November 2015, and-having never received it-later through counsel by subpoena in early 2018. His counsel eventually received a copy of the voluminous KBI file in June 2018. (See Pl.'s Mem., ECF No. 216 at 5.) Plaintiff argues it was only through careful review of the massive KBI investigation file by counsel that he was able to determine Bruce, Keener, Devore, and Bowling shared the training and oversight responsibilities for the SRT. Plaintiff contends all four proposed defendants knew or should have known they would have been named, but for Plaintiff's misunderstanding.

         Plaintiff also argues Bruce, Bowling, Devore, and Keener received sufficient notice of Plaintiff's action well within the statute of limitations and Fed.R.Civ.P. 4(m) service period. He claims their addition is not “severely prejudicial, ” because Bruce, Bowling, Devore, and Keener are represented by the same counsel as the other KHP Defendants, who have participated in this matter since the beginning. Discovery is not currently scheduled to close until December 20, 2019, and this case is not yet set for trial. Therefore, Plaintiff believes the additional defendants will not be prejudiced by defending this claim on the merits.

         b. Addition of KHP Trooper Perry Frey

         Plaintiff seeks to add another KHP officer present at the scene of his arrest. Through documents and video interviews obtained from the KBI, Plaintiff discovered Perry Frey participated in his arrest. Plaintiff learned Frey was the “lead shield in the passenger side ‘stack' that assaulted [his] vehicle and provided the handcuffs that were used to restrain” him during his arrest. (ECF No. 216 at 11.) Moreover, Trooper Frey “stood mere feet away” during Plaintiff's alleged beating and failed to intervene. (Id.)

         Plaintiff argues the addition of Perry Frey as Defendant is not futile because it relates back under Rule 15(c)(1)(C), and Defendants offer no support for their one-sentence argument that his addition does not relate back. During his deposition, Frey testified he had notice of the claims and received email updates; therefore, Frey had notice and would not be prejudiced. Even if Plaintiff's claims against Frey did not relate back, Plaintiff contends the claims are subject to equitable tolling on the same basis on which Judge Melgren permitted the naming of the other KHP “John Doe” defendants. (See Mem. & Order, ECF No. 149.) Plaintiff further argues the KHP Defendants should be equitably estopped from relying on the statute of limitations defense, because they had an obligation to identify Frey when directed to do so by Judge Melgren, and misled Plaintiff to believe Frey was not one of the officers present during Plaintiff's arrest. It was only through review of the extensive KBI investigative file that Plaintiff's counsel determined Frey was present. For these reasons, Plaintiff seeks to amend his Complaint to add KHP Trooper Frey.

         c. Addition of RCPD Detective Joseph Ehrlich

         Plaintiff asserted claims against RCPD officers Robert Dierks, Brian Johnson, and Mark French for failure to provide him with adequate medical care following his arrest and instead taking him straight to jail. He did not name RCPD Detective Joseph Ehrlich in any prior complaint.

         Plaintiff's counsel contends by the time he received discovery documents from the RCPD in September 2017, he was newly-appointed and was focused on Judge Melgren's order related to naming the KHP “John Does, ” as well as two pending dispositive motions. He argues Ehrlich's omission from the Second Amended Complaint, filed specifically to comply with Judge Melgren's order to name the John Doe KHP officers, was an inadvertent omission. It was not until counsel's review of the KBI file that he realized Ehrlich should have been included.

         Plaintiff maintains Rule 15(c)(1)(B) is satisfied because the claim against Ehrlich “arises under” the same transaction or occurrence as the original pleadings. He further claims Rule 15(c)(1)(C) permits the addition, because Ehrlich was made aware of the filing of this lawsuit, and knew or should have known that but for his inadvertent omission, he would have been named in this action along with his fellow RCPD officers who were on scene.

         Even if the claim did not relate back under Rule 15(c)(1)(B) and (C), Plaintiff claims the claim is timely under the “unique circumstances” doctrine and equitable tolling. Plaintiff also argues his delay in naming Ehrlich does not equate to “undue delay”, for substantially the same reasons as those supporting relation back. He has adequate explanation for the delay, and it was counsel's inadvertence and oversight that led to the delay in attempting to add Ehrlich to the case. Finally, Plaintiff contends Defendants can point to no prejudice by including Ehrlich.

         2. KHP Defendants' Position

         In response to Plaintiff's motion, the KHP defendants focus on the alleged futility of Plaintiff's proposed failure-to-train claim, the related defendants, and Trooper Frey.

         a. Failure-to-Train Claim and Related Defendants

         The KHP Defendants argue this is a new claim, with new defendants, which does not relate back and is therefore futile because it is subject to dismissal on the statute of limitations. They contend the training issue was only included as a requested relief and was only directed to the SRT officers on the scene of Plaintiff's arrest. Plaintiff's proposed amendment would bring in administrative officers who were not on the scene, and the KHP Defendants argue Bruce, Devore, Keener, and Bowling lacked any notice of the proposed claim against them and, essentially, Plaintiff made a deliberate choice-not a mistake-in not suing them.

         The KHP Defendants also insist the failure-to-train claim, even if it does relate back, is not sufficiently plead. Defendants maintain the proposed claim is subject to dismissal because it does not include allegations of the specific policy or training which Plaintiff claims to be improper or inadequate. And, they contend the proposed addition of Devore, Keener, Bowling, and Bruce is futile because those defendants would be entitled to qualified immunity.

         b. Addition of Trooper Perry Frey

         The KHP Defendants argue the addition of Frey is futile, because his addition does not relate back to the earlier Complaint. They claim Frey was not one of the “John Doe” Defendants which Judge Melgren ordered them to identify.[7]

         The KHP Defendants also contend Plaintiff's proposed Third Amended Complaint fails to state a claim against Frey because the face of the pleading does not exhibit any allegations regarding Frey's personal participation in Plaintiff's arrest. (ECF No. 229 at 29). For the most part, the KHP Defendants focus solely on futility, and spend little time discussing prejudice to Frey by his addition to the case.

         3. RCPD Defendants' Position

         The RCPD Defendants contend the statute of limitations prohibits Ehrlich's addition to the case. Plaintiff's counsel in his earlier criminal action sought discovery for that case, and Defendants argue Plaintiff possessed the same discovery and used it to support the First and Second Amended Complaints. Defendants claim that discovery identified Ehrlich and described his involvement. Although Plaintiff had the information, he failed to seek Ehrlich's addition prior to the expiration of the statute of limitations; therefore they contend Plaintiff's failure to name Ehrlich was not a mistake, and because there was no mistake, there can be no relation back. The RCPD Defendants rely on the information available to Plaintiff and his counsel in the underlying criminal case, as well as early discovery in this case.

         The RCPD Defendants also argue the unique circumstances doctrine does not apply, because there was no non-party error, and Plaintiff should have known about Ehrlich's involvement at the time of filing his First Amended Complaint. Defendants also contend the circumstances giving rise to the application of equitable tolling to the statute of limitation for plaintiff's Second Amended Complaint are not applicable to his proposed amendment to add Ehrlich. Unlike the KHP defendants, who did not identify the John Doe officers as ordered, Plaintiff had documents identifying Ehrlich, and his identity was never concealed. Because Plaintiff should have known about Ehrlich, Defendants argue his omission was not inadvertent.

         B. Legal Standards

         A brief review of the legal standards underlying the parties' arguments is necessary in considering Plaintiff's motion.

         1. Amendment Generally

         The Fed.R.Civ.P. 15 standard for permitting a party to amend his or her complaint is well-established. A party may amend its pleading as a matter of course under Fed.R.Civ.P. 15(a)(1), either before the responding party answers or within 21 days after service of a responsive pleading. However, in cases such as this, where the time to amend as a matter of course has passed, without the opposing party's consent a party may amend its pleading only by leave of the court under Rule 15(a)(2).

         Rule 15(a)(2) provides leave “shall be freely given when justice so requires, ” and the decision to allow an amendment is within the sound discretion of the court.[8] The court considers a number of factors in deciding whether to allow an amendment, including timeliness, prejudice to the other party, bad faith, and futility of amendment.[9] In exercising its discretion, the court must be “mindful of the spirit of the federal rules of civil procedure to encourage decisions on the merits rather than on mere technicalities.”[10] The Tenth Circuit acknowledged Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties, '”[11] especially in the absence of bad faith by an offending party or prejudice to a non-moving party.[12]

         2. Futility of Amendment

         The party opposing amendment bears the burden of establishing its futility.[13] “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.”[14] The proposed pleading is then analyzed using the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). When utilizing this standard, “the court must accept as true all well-pleaded factual allegations and view them in the light most favorable to the pleading party.”[15] Only if the court finds “the proposed claims do not contain enough facts to state a claim for relief that are plausible on their face or the claims otherwise fail as a matter of law”[16] should the court find the amendment futile.

         3. Relation Back

         Because Plaintiff seeks to amend his complaint after the statute of limitations has run, [17] the proposed amendment is futile unless it relates back to the original complaint. Under Fed.R.Civ.P. 15(c)(1)(B), an amendment may relate back to the date of the original pleading if certain condition are met. An amendment to a pleading relates back to the date of the original pleading when the following scenarios, applicable to this case, apply:

(B) 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; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.[18]

         Fed. R. Civ. P. 15(c)(1). The purpose of the relation back doctrine is to balance the defendants' interest in statute of limitations protections with the federal rules' general preference to resolve disputes on their merits.[19]

         Rule 15(c)(1) is intended to give the defendant “fair notice that the litigation is arising out of a specific factual situation.”[20] An amended pleading does not relate back to a previous pleading unless the earlier pleading fairly gave the defendant notice of the later-asserted claim.[21] “When an amendment is based on different facts, transactions, and occurrences, a claim in an amended pleading will not relate back.”[22]

         Section 15(c)(1)(B) addresses amendment of a claim or defense. When deciding whether a proposed amend claim relates back under Fed.R.Civ.P. 15(c)(1)(B), the court gives broad construction to the set of claims that “arise” out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading.[23]

         Section 15(c)(1)(C) addresses relation back when the amendment changes the party or the naming of the party against whom a claim is asserted. And, the “arising under” provisions of Rule 15(c)(1)(B) must still be satisfied.

         The change or addition of a party should be permitted if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.”[24] The focus here is on “what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of [the] original complaint.”[25]What the plaintiff knows or should have known is only relevant “if it shows “a deliberate choice to sue one party instead of another while fully understanding the factual and legal differences between the two parties.”[26]

         4. Equitable Tolling and Unique Circumstances

         The parties discuss both the doctrines of equitable tolling and unique circumstances as alternatives to permitting or denying amendment on the basis of relation back. Both doctrines were discussed in detail by Judge Melgren in his earlier order allowing Plaintiff to file the Second Amended Complaint. (Mem. & Order, ECF No. 149). Because the Court does not rely heavily on either doctrine in its analysis, these doctrines are summarized as follows:

         a. Equitable tolling.

         Although statutory tolling does not apply in this case, [27] Judge Melgren previously applied equitable tolling to overcome Defendants' futility arguments and permit Plaintiff to file his Second Amended Complaint without running afoul of the statute of limitations. (ECF No. 149 at 15-18.) “Equitable tolling applies when a person has been pursuing his rights diligently and some “extraordinary circumstance” prevented the timely filing.”[28] Due to the length of time the Court took to screen Plaintiff's pro se Complaint, along with the KHP Defendants' delay in identifying the John Doe Defendants, the Court found it equitable to toll the limitations period.

         b. Unique circumstances.

         “The unique circumstances doctrine considers the non-party error, whether the party's conduct affected the non-party error, and whether the party reasonably relied upon the non-party's action.”[29] In his March 2, 2018 order, Judge Melgren found-due to the length of time it took the Court to screen Plaintiff's initial complaint, then the Court gave Defendants multiple extensions of time to respond to the pleadings and discovery; then stayed proceedings pending resolution of dispositive motions-there were “569 days for which Plaintiff was waiting on a non-party to perform an action in this case and it was not due to Plaintiff's lack of diligence.” (ECF No. 149 at 15.) Judge Melgren found “under the unique circumstances of this case, the statute of limitations was tolled and has not yet expired, ” so Plaintiff could proceed to name the “John Doe” KHP defendants. (Id.)

         With the arguments of the parties and the above standards in mind, the Court evaluates Plaintiff's motion.

         C. Discussion

         As outlined above, to determine whether amendment is proper, the Court considers the following factors: timeliness, prejudice to the other party, bad faith, and futility of amendment.[30] Plaintiff's motion was timely filed. Despite it being filed more than three years after the filing of the initial Complaint, it was filed on the deadline established in the most recent Scheduling Order. Therefore, there is no dispute regarding its timeliness, from a deadline perspective. In fact, the parties present no timeliness arguments regarding undue delay; but rather only timeliness as it relates to the statutes of limitations. Neither set of defendants claim to suffer any prejudice from amendment, aside from within their relation-back arguments, and no defendants make allegations of bad faith. Therefore, the Court's analysis is narrowed to the potential futility of all proposed amendments. The futility of each proposed claim and/or newly-named defendant is addressed in turn.

         1. Failure-to-train Claim and Addition of Related Officers

         Although Plaintiff did not mention the KHP's failure to train officers in his initial Complaint, he did include it as a relief sought in his First Amended Complaint. Both pleadings were filed pro se, so the Court provides him some leniency. After counsel was appointed, counsel was directed to amend to identify the John Doe defendants, [31] and- specifically following those instructions-counsel filed the Second Amended Complaint. These facts weigh in favor of permitting the addition of the failure-to-train claim.

         Additionally, upon receiving both the First and Second Amended Complaints, Defendants were certainly aware a potential form of relief would be an injunction requiring the KHP tactical (SRT) team to engage in additional training. Even with Plaintiff's proposed addition of the failure-to-train claim, Plaintiff's requested forms of relief remain identical to his earlier pleadings.

         The primary argument against permitting the new claim is its purported futility, based on the expiration of the limitations period and whether the claim relates back. When reviewing whether a proposed amendment relates back to the original complaint under Rule 15, the Tenth Circuit has found the phrase “arising out of” “must be broadly construed to mean ‘originating from,' ‘growing out of,' or ‘flowing from.'”[32] In one case cited by the Circuit, the court explained “arising out of” simply “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.”[33] In a District of Kansas opinion, the court analyzed whether the scope and nature of the case was “radically altered” by the addition of the new claims.[34]

         Under the facts presented, the Court finds the failure-to-train claim relates back to Plaintiff's First Amended Complaint, filed prior to expiration of the statute of limitations, under Rule 15(c)(1)(B). The inclusion of the failure-to-train relief in the First Amended (and Second Amended) Complaint implies, by its very nature, if the KHP SRT team needed additional training, they were not previously properly trained. Plaintiff's claims, then, are not “radically altered” by the addition of this claim. Rather, this claim is broadly linked to the earlier Amended Complaint.

         Regarding the proposed addition of defendants related to the failure-to-train claim, the Court first examines Defendant Peters. Peters has been named in the case since its original filing, and the Court finds he was aware, since the filing of the Amended Complaint, the training of the KHP SRT officers was an issue in the case. In fact, a part of Peters' early motion to dismiss the First Amended Complaint was based, in part, on his inability to effectuate the training piece of Plaintiff's requested relief. (See Defs.' Mem., ECF No. 42 at 8.) The Court finds Peters has been given fair notice of the proposed claim. ...


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