Opinion
Case No. 2:11-cv-399
02-07-2012
Benjamin Hendricks, Plaintiff, v. Ms. Wessell, et al., Defendants.
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
OPINION AND ORDER
Plaintiff, Benjamin Hendricks, an inmate currently housed at the Frazier Health Center, originally brought this action against several state employees in their individual capacities pursuant to 42 U.S.C. §1983 and state law. He now seeks to amend his complaint. For the following reasons, Mr. Hendricks' Motion to Amend (#26) is granted in part and denied in part. In addition, Defendants' Motion to Strike (#21) is denied.
I. Background
Mr. Hendricks filed a complaint in this action on June 9, 2011. Defendants moved to dismiss the complaint on July 29, 2011. On September 28, 2011, Mr. Hendricks filed a motion to amend the complaint, but he subsequently withdrew that motion on November 4, 2011. On December 9, 2011, Mr. Hendricks filed a new motion to amend the complaint.
The proposed amended complaint seeks to pursue this action as a class action, to add allegations regarding a separate incident involving an additional plaintiff and additional defendant, to add additional defendants who are alleged to be liable based on their positions of authority, and to sue all defendants in their official capacities as well as their individual capacities for damages and injunctive relief. Defendants have opposed the amended complaint primarily on grounds of futility and prejudice.
II. Standard
Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Mr. Hendricks has not met either deadline, and accordingly, his motion to amend is governed by subsection (a)(2) of Rule 15.
Mr. Hendricks' briefs refer to an earlier version of Rule 15(a), and, accordingly, his statement of the law is incorrect insofar as he sets forth the timing for amending a pleading as a matter of course.
Rule 15(a)(2) of the Federal Rules of Civil Procedure states that when a party is required to seek leave of court in order to file an amended pleading, "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The Court of Appeals has spoken extensively on this standard, relying upon the decisions of the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962) and Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971), decisions which give substantial meaning to the phrase "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 Ins. Co. v. Employers Ins. 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).
The Court of Appeals has also identified a number of additional factors which the District Court must take into account in determining whether to grant a motion for leave to file an amended pleading. They include whether there has been a repeated failure to cure deficiencies in the pleading, and whether the amendment itself would be an exercise in futility. Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th Cir. 1990) (citing Head v. Jellico Housing Authority, 870 F.2d 1117 (6th Cir. 1989)). The Court may also consider whether the matters contained in the amended complaint could have been advanced previously so that the disposition of the case would not have been disrupted by a later, untimely amendment. Id. It is with these standards in mind that the instant motion to amend will be decided.
III. Discussion
A. Amending the complaint to seek class certification
Mr. Hendricks' proposed amended complaint seeks to proceed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Defendants argue that such an amendment would be futile as Mr. Hendricks has no standing to assert the constitutional rights of other prisoners.
Rule 23(a) sets forth the following prerequisites to certifying a class action:
(1) the class is so numerous that joinder of all members is impracticable;Fed. R. Civ. P. 23(a). Defendants point to the last of these prerequisites arguing that Plaintiffs, who are pro se, do not satisfy that requirement.
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Mr. Hendricks concedes that pro se prisoners may not serve as class representatives. (Pl.'s Reply at 3); see also Palasty v. Hawk, 15 Fed. Appx. 197, 200 (6th Cir. 2001); Tarpley v. Jefferson County Com'rs, No. 2:09-cv-199, 2010 WL 300609, *1 (S.D. Ohio Jan. 19, 2010). While Mr. Hendricks seeks appointment of counsel, it does not appear to this Court that appointment of counsel is warranted for purposes of permitting the action to proceed as a class action at this point. It is not clear that this action will be able to satisfy the other prerequisites from Rule 23(a) such as numerosity and questions of law or fact common to the class. The allegations that Mr. Hendricks and Mr. Ingram were each subject to a misuse of force involve completely separate incidents and do not raise common questions of fact. Even the question of whether Defendant Hazzard, potential defendant Hill, and other correctional officers had prior misuse of force complaints against them that had not been properly addressed and that therefore resulted in injury to a class member will involve highly individualized discovery. Furthermore, the two alleged constitutional violations involving Mr. Hendricks - the alleged excessive use of force and the alleged retaliation claim - present completely different questions of fact and law. Accordingly, the Court declines to appoint counsel at this time.
Mr. Hendricks seeks alternatively to be afforded 90 days in which to attempt to retain counsel. The Court denies such relief but notes that nothing prevents Mr. Hendricks from seeking leave to amend the complaint to assert a class action if he is able to retain counsel, although the Court may either grant or deny such a motion. B. Amending the complaint to add new claims
The allegations in paragraphs 66 through 112 of the proposed amended complaint allege that proposed new defendant, Leon Hill, violated the constitutional rights of proposed new plaintiff, Daniel Ingram, in connection with an incident unrelated to the ones previously alleged. New unrelated claims against new defendants need not be allowed. Hetep v. Warren, 27 Fed. Appx. 308, 309 (6th Cir. 2001) (citation omitted); see also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (unrelated claims against different defendants belong in different lawsuits not only to prevent confusion, but to ensure that prisoners pay the required filing fees under the Prison Litigation Reform Act). The motion to amend the complaint will be denied as to the addition of Plaintiff Ingram and Defendant Hill. C. Amending the complaint to add additional defendants in their individual capacities
In addition to proposed new defendant, Mr. Hill, the proposed amended complaint also seeks to add Ernie Moore, Gary Mohr, and Rodger Roddy as defendants in their individual and official capacities. This section addresses the claims against those proposed defendants in their individual capacities, and the following section addresses the claims against all defendants in their official capacities.
"To state a claim under §1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998) (internal quotations and citations omitted). Where individual defendants are alleged to be liable based on the acts of others who they supervise, there must be a "direct causal link between the acts of individual [employees] and the supervisory defendants." Hays v. Jefferson County, 668 F.2d 869, 872 (6th Cir. 1982); see also Doe ex rel. Doe v. City of Roseville, 296 F.3d 431, 440-41 (6th Cir. 2002) (dismissing claims against individual defendants where there was no causal connection between the action or inaction of the individual defendant and the deprivation of a Constitutional right).
In light of this requirement of causation, a mere failure to respond to a grievance does not state a claim under §1983 where that non-response did not cause or contribute to the constitutional violation. "The 'denial of administrative grievances or the failure to act' by prison officials does not subject supervisors to liability under § 1983." Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (citations omitted) (also noting that "an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause."); see also Argue v. Hofmeyer, 80 Fed. Appx. 427, 430 (6th Cir. 2003) (holding that the plaintiff failed to state a claim concerning the alleged interference with his ability to file grievances "because there is no inherent constitutional right to an effective prison grievance procedure"). An official's failure to act may rise to the level of a constitutional violation where that failure is an abandonment of "the specific duties of his position . . . in the face of actual knowledge of a breakdown in the proper workings of the department," that "result[s] directly in a violation of the plaintiff's" constitutional rights. Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992) (involving an official who repeatedly failed to review and respond to the medical needs of the prison population). However, there is no liability where officials knew of alleged violations against the plaintiff "but failed to act when the situation was in their control." Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding that allegations that the defendants had denied the plaintiff's administrative grievances and failed to remedy the alleged retaliatory behavior did not rise to the level of a constitutional violation).
Apart from the single allegation that Mr. Hendricks "sent a letter to defendant Moore's office about the problems with defendant Hazzard and others," and that "letter was ultimately forwarded to defendant Crockett-Harris," the only allegations against the proposed additional defendants are about their positions or are general conclusory allegations. Mr. Hendricks alleges that Mr. Moore was and Mr. Mohr is the Director of the Ohio Department of Rehabilitation and Correction and that they had/have "authority to manage and direct the total operations of the Department and to establish such rules and guidelines as pertains to the instant case." Similarly, the proposed amended complaint alleges that Mr. Roddy "is/was a Deputy Warden at Pickaway Correctional Institution," and "[i]t is/was in the scope of his authority and/or job description to oversee correctional officers and to establish such rules and guidelines as pertains to the instant case." Mr. Hendricks alleges that all three potential new defendants have "caused, created, authorized, condoned, ratified, ordered approved, and/or knowingly acquiesced in the illegal, unconstitutional, and inhumane conditions, actions, policies, customs and practices alleged in this complaint."
There are no factual allegations sufficient to state a claim against these proposed additional defendants in their individual capacities. See, e.g., Petty v. County of Franklin, Ohio, 478 F.3d 341, 349-50 (6th Cir. 2007) (holding that in order for §1983 liability to attach to an individual supervisor, there must be a causal connection between the supervisory official and the unconstitutional conduct of the offending subordinate, but to the extent that a suit is against a defendant in his or her official capacity, a government custom or policy must be the moving force behind the violation of constitutional rights). Indeed, in addition to the lack of factual allegations regarding these potential defendants, Mr. Hendricks has not alleged facts sufficient to show that there was a systemic problem of such proportion that the proposed defendants would have known about it as a result of their positions. Amending the complaint to add these proposed new defendants in their individual capacities would be futile. D. Amending the complaint to sue all defendants in their official capacity as well as their individual capacity
Mr. Hendricks' initial complaint alleges that "[a]ll defendants are sued here in their individual capacities," but the proposed amended complaint alleges that "[a]ll defendants are sued here in their individual and official capacities." (Compare Compl. at ¶16 with Mot. Am. Compl. at ¶ 20.) Individual-capacity claims "seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 25 (1991). In contrast, an official-capacity claim is "another way of pleading an action against an entity of which an officer is an agent." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). Defendants do not address this proposed amendment in their response to the motion to amend except to generally oppose the addition of defendants as prejudicial.
"[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008) (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)). "Indeed, when officials sued in this capacity in federal court die or leave office, their successors automatically assume their roles in the litigation." Hafer v. Melo 502 U.S. 21, 25 (1991) (citing inter alia Fed. R. Civ. Pro. 25(d)(1); Fed. R. App. Pro. 43(c)(1)). "Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, 'the entity's "policy or custom" must have played a part in the violation of federal law.'" Id. (citations omitted).
In most circumstances, "[t]he Eleventh Amendment bars suits brought in federal court against a state and its agencies unless the state has waived its sovereign immunity or consented to be sued in federal court." Id. (quoting Will, 491 U.S. at 66, additional citations omitted). Courts may raise Eleventh Amendment immunity sua sponte, but they are not obligated to raise that issue if the parties have not addressed it. Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389 (1998) (citing Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 515 n.19 (1982)); see also Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Because it is possible for the State to waive this immunity, and because the State was not a defendant to the initial complaint, there has been no opportunity to determine whether the State will waive its immunity regarding the allegations that Mr. Hendricks seeks to assert in his amended complaint. Accordingly, the Court will not address the issue of immunity at this time.
In addition, even if the State does not waive its immunity, "[t]he Eleventh Amendment does not bar federal claims for prospective injunctive relief against state officials named in their official capacities." Davie v. Wingard, 958 F. Supp. 1244, 1255 (S.D. Ohio 1997) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)). Such injunctive relief cannot be sought to remedy past violations but rather must be addressed to ongoing violations. See S & M Brands, Inc. v. Cooper, 527 F.3d 500, 511 (6th Cir. 2008).
It appears that Mr. Hendricks' proposed amended complaint seeks to allege a policy, custom, or practice of hiring correctional officers with a history of incidents of misusing force and failing to supervise and discipline officers who repeat such conduct. (See conclusory allegations in Am. Compl. at ¶¶114-16.) In particular, he has alleged that he had a conversation with a case manager about problems with Defendant Hazzard "along with allegations made by other correctional officers that defendant Hazzard had a history of such incidents before his employment with ODRC and during his time with ODRC." (Am. Compl. at ¶43.) He has also alleged another incident where another correctional officer, proposed defendant Hill, misused force on proposed plaintiff Ingram. (Am. Compl. at ¶¶83-96.) He alleged that a state highway patrolman told proposed plaintiff Ingram that proposed defendant Hill "ha[d] been exonerated for each and everyone of his misuse of force complaints." (Am. Compl. at ¶102.) Although the claim by proposed plaintiff Ingram against proposed defendant Hill may not be added, the allegations underlying that proposed claim are relevant to demonstrating a policy, custom or practice regarding the hiring and supervision of correctional officers.
While the factual allegations relating to an official capacity claim are sparse at best, Defendants have not argued that such claims against state officials in their official capacity are futile, and their general arguments of prejudice are not sufficient in the circumstances presented here to override Rule 15(a)(2)'s mandate that "[t]he court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). Accordingly, the Court will grant Mr. Hendricks' motion to amend insofar as it seeks to add the allegations in its proposed amended complaint pursuing claims against defendants in their official capacity and seeking injunctive relief relating to those claims.
IV. Conclusion and Order
For the reasons set forth above, the Court grants in part and denies in part Mr. Hendricks' motion to amend the complaint (#26). The Court denies the motion insofar as it seeks to amend the complaint to pursue this action as a class action, to add a claim by proposed plaintiff Ingram against proposed defendant Hill, and to add additional defendants Moore, Mohr, and Roddy in their individual capacities. The Court grants the motion insofar as it seeks to amend the complaint to sue any of the defendants in their official capacities and seek injunctive relief and to add relevant allegations involving the alleged incident between Mr. Ingram and Mr. Hill. Mr. Hendricks is granted leave to file, within seven days, an amended complaint that conforms to this order.
The Court also denies Defendants' motion to strike (#21).
V. Procedure for Reconsideration
Any party may, within fourteen days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due fourteen days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.
Terence P. Kemp
United States Magistrate Judge