Gregg v. Ohio Dept. of Youth Services

• Decision Date: 22 September 2009
• Docket Number: Case No. 2:07-cv-1213.
• Citation: 661 F.Supp.2d 842
• Parties: James M. GREGG, Plaintiff, v. OHIO DEPARTMENT OF YOUTH SERVICES, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

661 F.Supp.2d 842

James M. GREGG, Plaintiff, v. OHIO DEPARTMENT OF YOUTH SERVICES, et al., Defendants.

Case No. 2:07-cv-1213.

United States District Court, S.D. Ohio, Eastern Division.

September 22, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Judith B. Goldstein, Kathaleen Beth Schulte, Equal Justice Foundation, Columbus, OH, for Plaintiff.

Lisa M. Eschbacher, Ohio Attorney General's Office, Criminal Justice Section, Dierdra M. Howard, Ohio Attorney General, Emily C. Hvizdos, Office of the Ohio Attorney General, Columbus, OH, for Defendants.

OPINION AND ORDER

KEMP, United States Magistrate Judge.

Plaintiff James M. Gregg brought this civil rights action pursuant to 42 U.S.C. § 1983. The case involves an incident that took place on November 27, 2006, at the Ohio River Valley Juvenile Correctional Facility located in Franklin Furnace, Ohio. Mr. Gregg's first amended complaint alleges that the defendants, all of whom are employed by the Ohio Department of Youth Services in some capacity, are legally responsible for injuries he received at the hands of Juvenile Corrections Officers (JCOs) on that date.

On June 12, 2009, the defendants filed a motion for summary judgment. Mr. Gregg then moved for leave to amend his complaint to conform his claim against defendant Slusher to the evidence. The defendants have also filed a motion in limine contesting the admissibility of some of the evidence relied on by Mr. Gregg in opposing their motion for summary judgment. Each of these motions is fully briefed. For the following reasons, the motion for leave to amend will be granted, the motion in limine will be denied, and the motion for summary judgment will be granted in part and denied in part.

I. The Facts (as Alleged by Mr. Gregg)

In November 2006, Mr. Gregg, then a juvenile, was living at ORVJCF, a ODYS facility. At approximately 8:00 p.m. on the evening of November 27, Mr. Gregg was in the "medline" waiting for medication. After receiving his medication, he rejoined the line. At some point, he stepped out of this line to speak to JCO Slusher, one of the named defendants. JCO Rogers, another defendant, ordered Mr. Gregg to get back in line. When Mr. Gregg did not, Officer Rogers used physical force against him, and some type of altercation began. At some point during the altercation, a radio call went out and staff from throughout the facility arrived to offer assistance.

Defendant Derifield, another JCO, was the first staff person to arrive on the scene. He helped Officer Rogers restrain Mr. Gregg. By that time, Officer Slusher had ordered the juveniles in the area to the ground but he did not intervene either to help or to restrain Mr. Gregg. Defendant Lindamood arrived just as Mr. Gregg was finally subdued and ordered that he be handcuffed and escorted back to his unit. Mr. Gregg was cuffed behind his back and led away toward his housing unit.

Defendant Kirby Lawson was one of at least two JCOs who escorted Mr. Gregg back to the unit. According to Mr. Gregg, as they were walking back to the unit, Officer Lawson lifted him by his head and neck and threw him on his back onto the ground. The amended complaint alleges that defendants Randall Crank and Joshua Barnard were somewhere in the area when this second assault allegedly occurred.

As the result of the use of force, Mr. Gregg sustained red marks to his face and neck and a black eye. These injuries were documented later that evening by the facility's medical staff. The next morning, Mr. Gregg discovered a large red blood spot in his left eye. He was taken off grounds to the emergency room at the Southern Ohio Medical Center for diagnosis and received treatment for a hematoma. Since his release from ODYS custody, Mr. Gregg has not sought additional treatment, but he continues to suffer from anxiety attacks which increased in frequency after the use of force. All of the pending motions will be decided against this basic factual backdrop.

II. The Motion to Amend the Complaint

Mr. Gregg has moved for leave to file a second amended complaint. The proposed amendment changes only Mr. Gregg's claims against Officer Slusher. Both the original and first amended complaints allege that Officer Slusher participated in one of the assaults on Mr. Gregg. However, in their depositions, Officers Rogers and Slusher both testified that Officer Slusher did not participate in the alleged assaults. The second amended complaint asserts that Officer Slusher failed to intervene when Mr. Gregg was physically assaulted by JCO Rogers. Mr. Gregg argues that the proposed amendment would merely conform his complaint to the evidence in this case and should therefore be allowed under Fed.R.Civ.P. 15(b).

The defendants oppose this motion because, in their view, Mr. Gregg has not shown good cause for filing his motion only after they moved for summary judgment. They point out that Officer Slusher's deposition was taken three months before the July 11, 2008 deadline for amending the pleadings, and argue that he could have made this motion much earlier. They also argue that Officer Slusher will be prejudiced by this amendment because he would otherwise be entitled to summary judgment on the use of force claim. The defendants also assert that Rule 15(b), which deals with amendments to conform to the evidence, is not applicable because this matter has yet to go to trial.

Rule 15(b) clearly does not apply here. Not only does this subsection contemplate that the amendment of pleadings to conform to the evidence take place during or after a trial, it also requires that the issue not previously raised in the pleadings must have been tried with the parties' express or implied consent. Here, neither of these conditions is satisfied. The motion will therefore be considered under Fed.R.Civ.P. 15(a).

Rule 15(a), however, cannot be read in isolation. Rather, as the Court of Appeals recently pointed out in Leary v. Daeschner, 349 F.3d 888 (6th Cir.2003), Rules 15(a) and 16(b) must be read together when a motion for leave to amend is made after the deadline established in a Rule 16 order for moving to amend the pleadings. Consequently, the Court is permitted to examine the standard factors governing amendments of the complaints under Rule 15(a) only if it is satisfied that good cause exists for the late filing.

The Court is persuaded that Mr. Gregg has established good cause for extending the deadline for amending his complaint. Although it is true that Officer Slusher denied participating in the alleged assault at his April 10, 2008 deposition, Mr. Gregg was not required, at that point, to accept that testimony as true. At his own deposition on February 18, 2009, Mr. Gregg testified that he still believed that Officer Slusher had assisted Officer Rogers in subduing him. It was not until Officer Rogers' deposition on April 14, 2009, that he realized that it was Officer Derifield, and not Officer Slusher, who helped to restrain him. By then, the deadline to amend his complaint had long passed. Thus, the question becomes whether Rule 15(a) permits this amendment. The United States Court of Appeals for the Sixth Circuit has spoken extensively on the standard for granting leave to amend under Rule 15(a), relying upon the decisions of the United States Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) and Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), decisions which give substantial meaning to the "when justice so requires." In Foman, the Court indicated that the rule is to be interpreted liberally, and that in the absence of undue delay, bad faith, or dilatory motive on the part of the party proposing an amendment, leave should be granted. In Zenith Radio Corp., the Court indicated that mere delay, of itself, is not a reason to deny leave to amend, but delay coupled with demonstrable prejudice either to the interests of the opposing party or of the Court can justify such denial.

Expanding upon these decisions, the Court of Appeals has noted that:

[i]n determining what constitutes prejudice, the court considers whether the assertion of the new claim or defense would: require the opponent to expend significant additional resources to conduct discovery and prepare for trial; significantly delay the resolution of the dispute; or prevent the plaintiff from bringing a timely action in another jurisdiction.

Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir.1994) (citing Tokio Marine & Fire Insurance Co. v. Employers Insurance of Wausau, 786 F.2d 101, 103 (2d Cir.1986)). See also Moore v. City of Paducah, 790 F.2d 557 (6th Cir.1986); Tefft v. Seward, 689 F.2d 637 (6th Cir.1982). Stated differently, deciding if any prejudice to the opposing party is "undue" requires the Court to focus on, among other things, whether an amendment at any stage of the litigation would make the case unduly complex and confusing, see Duchon v. Cajon Co., 791 F.2d 43 (6th Cir.1986) (per curiam), and to ask if the defending party would have conducted the defense in a substantially different manner had the amendment been tendered previously. General Electric Co. v. Sargent and Lundy, 916 F.2d 1119, 1130 (6th Cir.1990); see also Davis v. Therm-O-Disc, Inc., 791 F.Supp. 693 (N.D.Ohio 1992).

Here, there is no evidence of any undue delay, bad faith, or dilatory motive on the part of Mr. Gregg or his counsel. But even were the Court to find that he should have sought leave to amend prior to the filing of the defendants' motion for summary judgment, mere delay is not a sufficient reason to deny a motion to amend. The defendants must couple this delay with a showing of prejudice in order to defeat the motion.

Here, amending the complaint to assert a different theory of liability against Officer Slusher will not require the defendants to expend significant additional resources and will...