Kling v. Beck, Civil Action No. 10-3221-CM-GLR
| Decision Date | 15 May 2012 |
| Docket Number | Civil Action No. 10-3221-CM-GLR |
| Parties | DOUGLAS A. KLING, Plaintiff, v. JAMES R. BECK, Defendant. |
| Court | U.S. District Court — District of Kansas |
The Court has under consideration a Motion for Leave to Amend (ECF No. 37), filed by pro se Plaintiff Douglas Kling. For the reasons set out below, the motion is granted in part and denied in part.
In November 2010, Plaintiff commenced this action against Marshall County Jailer James R. Beck. The complaint alleged criminal threat and aggravated assault and battery that occurred on August 29, 2010, when Beck allegedly used a taser against Plaintiff multiple times.1 The Court granted Plaintiff permission to proceed in forma pauperis. It also ordered a Martinez report,2 which was received January 31, 2011.3
On May 16, 2011, Defendant moved for summary judgment.4 That motion became ripe for ruling with the filing of a response from Plaintiff and a reply brief from Defendant in June 2011.5 Plaintiff then filed his first motion to amend his complaint.6 On September 29, 2011, the Court denied the motion to amend on procedural grounds, i.e., failure to attach a copy of the proposed amended complaint as required by local rules.7 The Court also denied in part the motion for summary judgment.8 It denied summary judgment on Plaintiff's excessive force claim, because "[i]f defendant shocked plaintiff twenty times and ignored plaintiff's requests for medical treatment, then a reasonable jury could find a constitutional violation."9 But it granted summary judgment against Plaintiff's state law claims for his failure to comply with Kan. Stat. Ann. 12-105b(d).10
About three months later Plaintiff filed the instant motion to amend.11 Defendant opposesit.12 Plaintiff has filed no reply brief. The motion is ready for ruling.
Parties may amend pleadings "once as a matter of course" before trial if they do so within (A) twenty-one days of serving the pleading or (B) "if the pleading is one to which a responsive pleading is required," twenty-one days of service of a responsive pleading or a motion under Fed. R. Civ. P. 12(b), (e), or (f), whichever is earlier.13 Other amendments before trial are allowed "only with the opposing party's written consent or the court's leave."14 Courts "should freely give leave when justice so requires."15 Rule 15 is intended "to provide litigants 'the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'"16
Courts may deny leave to amend, however, based on "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment."17 "Absent flagrant abuse, bad faith, futility of amendment, or truly inordinate and unexplained delay, prejudice to the opposing party is the key factor in deciding a motion to amend."18
In fact, the prejudice factor is the "most important" consideration in the decision.19 Typically, courts "find prejudice only when the amendment unfairly affects" a party's ability to prosecute or defend the lawsuit.20 This most often occurs when the amendment "raise[s] significant new factual issues" or arises from a different theory or subject matter than previously asserted.21 To justify denying leave to amend, the proposed amendment must "work an injustice" to an opposing party.22 The party opposing the amendment has the burden to show a basis for denial.23
Whether to allow a proposed amendment, after the permissive period, addresses the sound discretion of the court.24 "In exercising its discretion, the court must be mindful that the Federal Rules of Civil Procedure are designed to facilitate decisions on the merits rather than on pleading technicalities."25
Plaintiff seeks to amend his complaint by adding four defendants and asserting claims for (1)excessive force under the Eighth or Fourteenth Amendments, (2) negligence and/or deliberate indifference, and (3) criminal threat.26 Defendant opposes the motion on grounds that Plaintiff unreasonably delayed seeking leave to amend and that the new claims are futile.27
A court may properly deny leave to amend on undue delay alone when there is no justification for failing to amend earlier.28 Plaintiff has provided no reason for his delay in moving to amend even though the Court previously instructed him to fully explain the reasons for his delay if he filed a later motion to amend. That failure, however, does not mandate denial of the motion.
Although there has been delay, the inquiry is whether there has been undue delay that warrants denial of leave to amend. That inquiry requires examination of the circumstances in this case.
In November 2010, the Court liberally construed Plaintiff's pro se complaint as asserting a claim of excessive force.29 It ordered a Martinez report and directed that "[n]o answer or motion addressed to the complaint shall be filed until the Martinez report . . . has been prepared."30 After filing of the Martinez report on January 31, 2011, and the answer by Defendant on February 22, 2011, Plaintiff sought appointment of counsel. The Court denied that request on April 28, 2011.31 Defendant then filed a motion for summary judgment that became fully briefed on June 20, 2011.32 About a month later Plaintiff moved in a procedurally deficient manner to amend his complaint. The Court denied that motion. A little over three months later Plaintiff filed the instant motion to amend.
In light of Defendant's answer, Plaintiff had twenty-one days from February 22, 2011, to amend his complaint without leave of court.33 Plaintiff did not move to amend during that time. But he sought appointment of counsel on March 4, 2011. Under the facts of this case the Court does not find that Plaintiff unreasonably delayed his effort to amend, pending a ruling on his motion for counsel. Within about two weeks after the Court denied appointment of counsel, Defendant moved for summary judgment. That filing did not immediately prompt a motion to amend. But Plaintiff did move to amend about a month after the dispositive motion was fully briefed. At that point, Plaintiff had about three months of unexplained delay. Plaintiff delayed another three months or so before filing the instant motion, after the Court denied because of procedural defects his initial motion to amend. When Plaintiff filed his present motion, he had delayed six or seven months without adequate explanation.
The Court does not find that the six to seven months of unexplained delay in this case amounts to undue delay. It has entered no scheduling order to establish a precise deadline for amendments. Under the facts the Court finds no undue delay to warrant denial of the motion upon that ground.
Courts may deny leave to amend on grounds of futility, if the proposed amendment "wouldbe subject to dismissal for any reason."34 The party asserting futility of amendment has the burden to establish futility.35
When a party argues futility with respect to a proposed amended complaint, the court accepts the well-pleaded facts alleged in the complaint as true to determine whether the proposed claim would survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6).36 To survive such a motion, the claims asserted in a complaint must satisfy Fed. R. Civ. P. 8(a)(2).37 Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide opposing parties "fair notice of what the . . . claim is and the grounds upon which it rests."38
To plead a claim in compliance with Rule 8(a)(2), parties must provide "enough facts to state a claim to relief that is plausible on its face."39 Although "detailed factual allegations" are unnecessary, parties must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."40 Alleged facts must "raise a right to relief above thespeculative level."41
Claims have facial plausibility when the pleader provides sufficient factual content to allow a "reasonable inference that the defendant is liable for the misconduct alleged."42 This "plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."43 When pled facts are "merely consistent with" liability, the pleading falls "short of the line between possibility and plausibility" of being entitled to relief.44 Furthermore, when parties "have not nudged their claims across the line from conceivable to plausible," the claims are subject to dismissal.45
When resolving motions to dismiss under Rule 12(b)(6), courts determine whether the non-movant "is entitled to offer evidence to support the claims", not whether that party "will ultimately prevail."46 In sum, this Court may find a newly proposed claim futile, if viewing the well-pleaded factual allegations as true and in the light most favorable to the pleader, the pleading nevertheless contains insufficient facts to state a claim plausible on its face or otherwise fails as a matter of law. When considering whether an original complaint survives a motion to dismiss, courts may considera filed Martinez report as part of the pleadings.47 To the extent a proposed amended complaint is consistent with the Martinez report, the report may likewise be considered. Of course, courts may not rely on a Martinez report to resolve material disputed facts.48
Because Plaintiff proceeds pro se, his pleadings are liberally construed.49 So construed, the proposed amended complaint asserts (1) a claim of excessive force against Jailer Beck, Daniel Hargrave (Marshall County Sheriff), and the Marshall County Board of...
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