Ofori v. Fleming
| Decision Date | 11 March 2022 |
| Docket Number | CIVIL 7:20-cv-00345 |
| Parties | TERRY K. OFORI, Plaintiff, v. LESLIE J. FLEMING, et al., Defendants. |
| Court | U.S. District Court — Western District of Virginia |
Plaintiff Terry K. Ofori, a prisoner in the custody of the Virginia Department of Corrections (“VDOC”) proceeding pro se, filed a civil rights complaint asserting numerous claims against more than thirty defendants, which was originally docketed as Ofori v. Clarke, Case No 7:18-cv-587 (W.D. Va.). Because the original complaint contained misjoined claims and defendants, the court directed Ofori to file an amended complaint to correct that deficiency, and gave specific instructions about complying with Federal Rules of Civil Procedure 18 and 20. (Id., Dkt. Nos. 51, 52.) Ofori filed an amended complaint (id., Dkt. No. 57), but, as the court noted, it still did not entirely comply with the joinder rules. Rather than striking it for a failure to comply however, the court screened and sua sponte dismissed some of his claims and severed the others into separate lawsuits. (Id., Dkt. Nos. 62, 63.)
Ofori's amended complaint in that case was docketed as the original complaint in this case. (Dkt. No. 1.) By opinion and order entered on September 29, 2021, the court granted in part a motion to dismiss filed by some of the defendants, and it directed those defendants to file either a motion for summary judgment regarding the remaining claims or a notice saying one would not be filed. They elected to file a motion, and defendants already had filed a motion for summary judgment. Thus, two motions for summary judgment, which collectively seek summary judgment on all remaining claims, are ripe and pending before the court.
Also pending before the court are two other motions: (1) Ofori's renewed motion to amend or correct complaint (Dkt. No. 73), which defendants have opposed (Dkt. No. 78), and to which Ofori has filed “objections, ” which the court treats as a reply (Dkt. No. 79); and (2) defendants' second motion to amend/correct their amended answer (Dkt. No. 74). Ofori also filed a proposed second amended complaint (Dkt. No. 80), which he alleges he submitted to prison officials with his motion to amend. It was not received, though, until after briefing on the motion to amend was complete.
For the reasons discussed in more detail in this opinion, the court will deny Ofori's motion to amend, grant defendants' motion to amend, grant defendants' first motion for summary judgment, and grant in part and deny in part defendants' second motion for summary judgment.
Prior to addressing the merits of Ofori's claims, the court must address Ofori's latest motion to amend his complaint. Specifically, the Clerk received from him a renewed motion to amend on October 27, 2021, which seeks to add additional factual allegations to his current complaint. (Dkt. No. 73). Later, Ofori filed a 132-page document that is titled as his “2nd Intervention Amended Complaint.” (Dkt. No. 80.) In direct contravention of repeated admonitions from this court, that proposed amended complaint includes numerous claims against sixty-nine defendants. If permitted, it would thus add dozens of new defendants to this case, at least some of whom would be improperly joined.
The court agrees with many of the reasons defendants have given in their opposition as to why Ofori's latest motion to amend should be denied. (See generally Dkt. No. 78.) And the same reasons previously given by the court in denying Ofori's prior motions to amend are equally applicable here. For example, the first document he submitted (Dkt. No. 73) is not a stand-alone document, but it would have to be considered in conjunction with other documents to collectively constitute a complete complaint, which is improper. (See May 21, 2021 Order at 3, Dkt. No. 48 ().) Second, at least some of Ofori's allegations stem from events in 2017, now almost five years ago. It would greatly prejudice defendants to allow new allegations based on five-year old events, especially after motions for summary judgment have been filed. (Id.; see also Sept. 29, 2021 Mem. Op. at 28, Dkt. No. 67.)
The addition of new defendants and claims, too, would be prejudicial at this point in the case. Many of Ofori's claims have been dismissed and summary judgment motions are pending as to the rest. Thus, allowing amendment would continue to prolong resolution of this case. And notably, Ofori provides no explanation for why he waited approximately four years from the filing of his original complaint (in Case No. 5:18-cv-587) to add these claims and defendants and no explanation for why he could not have added them sooner.
Lastly, Ofori has exhibited a pattern-in this case and others pending before this court- of seeking to amend his complaint either before or immediately after dispositive motions are filed by defendants, instead of responding to the substance of the motion. He continues the pattern here: he has not even attempted to file a response to defendants' second motion for summary judgment, but instead has moved to amend. Defendants characterize this habit as evidence of bad faith, which Ofori denies. But regardless of whether Ofori has filed in bad faith, his latest motion to amend and proposed amended complaint seek-once again-to add new (and improperly joined) defendants and claims, after he repeatedly has been admonished he may not do so in this case. His motion for leave to amend (Dkt. No. 73) will be denied.
As noted, defendants also have filed their own motion to amend. In it, they explain that they seek to amend their answer “in order to incorporate their responses to those claims that remain active following the Court's ruling” on the motion to dismiss. (Dkt. No. 74 at 1.) Ofori has not opposed that motion, and the court finds that it is well-taken. Accordingly, defendants' second motion to amend their answer (Dkt. No. 74) will be granted, and their Second Amended Answer (Dkt. No. 74-1) will be deemed filed as of October 29, 2021.
As stated in the court's prior order, remaining in the case are the following five retaliation claims, all of which are based on events that occurred at Wallens Ridge State Prison (“WRSP”). Ofori alleges that the actions listed as to each claim were taken for retaliatory reasons:
(See 9/29/2021 Order at 1, Dkt. No. 68; see also generally Am. Compl., Section VIII, Dkt. No. 1 ().)[1]
In the first motion for summary judgment (Dkt. No. 32) (“1st MSJ”), defendants Combs, Daniel, Hughes, Stallard, and Stout seek summary judgment as to Claims 10 and 18 on two grounds. First, they contend that Ofori failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Second, they argue that there is no genuine dispute of material fact as to those claims such that they are entitled to judgment as a matter of law. (See generally Mem. Supp. 1st MSJ, Dkt. No. 33.)
The second motion for summary judgment (Dkt. No. 75) (“2d MSJ”), filed by defendants Hughes, Stallard, Roberts, and Mullins, seeks summary judgment as to the remaining three claims (Claims 1, 7, and 13), based on the same two grounds: Ofori's alleged failure to exhaust and the lack of disputed material facts as to the merits of his claims. (See generally Mem. Supp. 2d MSJ, Dkt. No. 76.)
Given the record in this case and the way Ofori titles some of his documents, it is important to be clear about what materials the court is considering as part of the summary judgment record. The summary judgment record consists of the following:
As noted, Ofori has not filed a response to the second motion for summary judgment.
Although his latest proposed amended complaint (Dkt. No. 80 & 80-1) is a verified document and was filed before his response deadline...
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