STEPHANIE K. BOWMAN, Magistrate Judge.
This civil action is before the Court on Plaintiff Ali Pineda's Motion for Leave to Amend the Complaint and/or to Vacate Order (Doc. 57), and the parties' responsive memoranda (Docs. 67, 69.) Upon careful review, the undersigned finds that Plaintiff's Motion is well-taken.
In this civil rights case brought pursuant to 42 U.S.C. § 1983, Plaintiff Ali Pineda accuses Hamilton County Sheriff's Deputies Roy Berry, William Cotton, and Gene Nobles ("County Defendants") of use of excessive force and failure to provide medical assistance. He alleges that, in the early morning of November 10, 2013, one of them struck him in the head with a baton in the course of breaking up a fight at the Inner Circle nightclub, where the deputies were working a private security detail. Pineda also sues PNA, Inc. ("PNA") doing business as Inner Circle.
Plaintiff's original five-count Complaint was filed on October 26, 2015. (Doc. 1.) He sued Hamilton County, Hamilton County Sheriff James Neil, the Hamilton County Sheriff's Department, Hamilton County Deputy Sheriffs Raymond Berry, William Cotton, and Gene Nobles, PNA, Inc. doing business as Inner Circle, and Cincinnati Police Officer Jeffrey Gramke. (Id. at PageID 3-4 (¶¶ 6-14).) Count 1 alleged excessive use of force and a failure to protect in violation of Section 1983 against the County Defendants. (Id. at PageID 8-9 (¶¶ 32-37).) Counts 2, 3, and 4 alleged conspiracies in violation of Section 1983 and 42 U.S.C. § 1985(3) between Deputy Sheriffs Berry, Cotton, and Nobles and Cincinnati Police Officer Gramke to deny Plaintiff equal protection of the law on account of his race (Hispanic) and national origin (Honduran). (Id. at PageID 9-11 (¶¶ 38-53).) Count 5 alleged negligence against County Defendants and Inner Circle. (Id. at PageID 11 (¶¶ 54-57).) On March 14, 2016, Senior United States District Judge Sandra S. Beckwith granted the County Defendants' Rule 12(b)(6) motion to dismiss the Complaint, leaving PNA and Cincinnati Police Officer Gramke as the remaining Defendants. (See Doc. 13.) Counsel for Plaintiff and counsel for Police Officer Gramke thereafter consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c) in the Rule 26(f) Joint Discovery Plan they filed on April 4, 2016 (Doc. 15.)
On April 11, 2016, Plaintiff filed a motion, pursuant to Rule 15(a), asking for leave to amend his Complaint with respect to his excessive use of force claim against Deputy Sheriffs Berry, Cotton, and Nobles and for leave to add a claim against the same deputies under Section 1983 for failure to provide adequate medical care; and, pursuant to Rule 59(e), asking the Court to amend its judgment to reinstate his excessive use of force claim against all County Defendants. (Doc. 22.) After hearing oral argument, the undersigned granted Plaintiff's motion to amend from the bench. (See 06/23/2016 Minute Entry.)
Plaintiff timely filed his six-count Amended Complaint on July 6, 2016. (Doc. 29.) Counts 1, 2, and 3 allege excessive use of force, a failure to protect, and a failure to provide medical assistance against Deputy Sheriffs Berry, Cotton, and Nobles. (Id. at PageID 154-55 (¶¶ 30-35).) Counts 4 and 5 allege a failure to supervise and ratification as to the deputy sheriffs' excessive use of force against the Hamilton County Sheriff's Department and Sheriff Neil. (Id. at PageID 155-56 (¶¶ 36-42).) Count 6 alleges a claim of negligence against PNA. (Id. at PageID 156 (¶¶ 43-45).)
Finding that County Defendants had not "explicitly or implicitly" consented to the jurisdiction before a magistrate judge, on September 20, 2016 Judge Beckwith reassumed jurisdiction of this civil action and reviewed the undersigned's June 23, 2016 order as if it were a Report and Recommendation.
The Court turned next to County Defendants' motion to dismiss Plaintiff's Amended Complaint. It denied their motion with respect to Plaintiff's excessive use of force (Count 1) and deliberate indifference to serious medical needs (Count 3) claims, but granted it as to Plaintiff's failure to protect (Count 2), failure to supervise (Count 4), and failure to investigate/ratification (Count 5) claims. (Id. at PageID 232-38.) The Court also determined that the deputy sheriffs were not entitled to qualified immunity regarding the excessive force and deliberate indifference claims. (Id. at PageID 238-39.) In dismissing Count 5, the Court was guided by the principle that municipal ratification of an alleged constitutional violation can only occur through an official with final decision-making authority. (Doc. 37 at PageID 236 (citing Brown v. Chapman, 814 F.3d 447, 462 (6th Cir. 2016).) Because the Amended Complaint did not allege that the Sheriff himself was notified of Plaintiff's claim that a deputy had intentionally struck him on the head and, despite this notification, failed to investigate, the Court reasoned that Count 5 was appropriately dismissed. (Id. at PageID 237 (quoting Brown, 814 F.3d at 462 ("Plaintiff does not name a final decisionmaker, but rather alleges that the Cleveland police department, as a whole, ratified the officers' conduct. This is insufficient to establish the requisite degree of culpability.") (internal citation omitted).) The Court concluded:
(Id. at Page 238 (emphasis added).)
Pursuant to Rules 15(a) and 54(b), Plaintiff now asks for relief from that portion of the Court's September 20, 2016 Order that dismissed from his Amended Complaint the failure to investigate/ratification claim (Count 5) against the Hamilton County Sheriff's Department and Sheriff Neil. Plaintiff asks to further amend his Amended Complaint to provide allegations of fact in support of this claim, arguing that his Motion is timely and predicated on evidence not available when County Defendants' motion to dismiss was decided. He argues additionally that allowing him to amend will not prejudice the ability of the Hamilton County Sheriff's Department and Sheriff Neil to defend against the claim. County Defendants oppose Plaintiff's Motion on the grounds that, procedurally, it is untimely and—because it gives the indication of adding a new party—would run afoul of the statute of limitations. Substantively, County Defendants contend that Plaintiff was dilatory in asking to amend, and, in any event, his proposed amendment would be futile.
In response to County Defendants' memorandum, Plaintiff attaches to his reply his Proposed Second Amended Complaint. (Doc. 69-1.) His proposed amended paragraph 23 reads as follows:
Id. at PageID 1225.) Plaintiff's proposed amended paragraph 41, describing the basis of his excessive force/ratification claim that he seeks to revive, states:
(Id. at PageID 1228-29.) Notably Plaintiff does not seek to add a new party, effectively mooting County Defendants' procedural arguments in opposition.
Federal Rule of Civil Procedure 54(b), governing "Judgment on Multiple Claims or Involving Multiple Parties," provides as follows:
(Emphases added.) Thus Rule 54(b), as well authority under common law, allows a district court to reconsider an interlocutory order and to reopen "any part of a case" before entry of final judgment. Rhoades v. Blue Chip Prop. Mgmt. Inc., No: 1:07CV802, 2008 WL 3166242, at *1 (N.D. Ohio Aug. 4, 2008) (quoting Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004)). See also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 & n.14 (1983) (observing that "every order short of a final decree is subject to reopening at the discretion of the district judge"). Traditionally, courts will reconsider interlocutory orders when there is: (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice. Rhoades, 2008 WL 3166242, at *1 (citing Rodriguez, 89 F. App'x at 959 (citing Reich v. Hall Holding Co., 990 F.Supp. 955, 965 (N.D. Ohio 1998))).
The Court's September 20, 2016 Order that dismissed Count 5 (as well as Counts 2 and 4) of Plaintiff's Amended Complaint clearly was interlocutory, because no final judgment followed it. As such, the Court is free to reconsider it and does so based on the discovery of new evidence.
On August 30, 2017, Plaintiff deposed Chief Deputy Mark Schoonover, who reports directly to Sheriff Neil. (Doc. 65 at PageID 811, 816 (6:5-18), 817 (7:15-25).) Schoonover testified that he handles the "day-to-day operations of the entire Sheriff's Office" and is the "final decision maker" with respect to "implementation, conduct, and termination" of internal investigations into officer misconduct. (Id. at PageID 817 (7:22-25), 820 (10:7-18), 821 (11:18-21).)
Chief Schoonover was asked about the public records request that Plaintiff, through his counsel, made prior to bringing this lawsuit. (Id. at 890-94 (80:24-84:16); January 6th, 2014 Letter from Marc D. Mezibov to Hamilton County Sheriff's Department, Record Division, Doc. 65-4.) Among other things, that request asked for "[r]ecords of any internal investigation, including reports, witness[] statements, interview transcripts, and notes pertaining to the incident." (Doc. 65-4 at PageID 1005.) The Hamilton County Sheriff's Department Record Division responded "no report taken at this location on those dates."
Schoonover conceded during his deposition that while the Record Division accurately responded to Plaintiff's counsel that no "report"—meaning a NIBRS report— existed, there was an internal investigation "underway" at the time of counsel's public records request was made. (Doc. 65 at PageID 894 (84:8-16).) Thus, by August 30, 2017, Plaintiff became aware that Sheriff Neil's Chief Deputy had actual or constructive knowledge of the events of November 10, 2013 at Inner Circle nightclub, had commenced an investigation in response, and had not produced records responsive to his counsel's original public records request dated January 6, 2014. (See Doc. 65 at PageID 890-94 (80:24-84:16); Doc. 65-4 at PageID 1005-06.)
A motion for leave to amend is addressed to the discretion of the court. Foman v. Davis, 371 U.S. 178, 182 (1962). In exercising its discretion, the court "should freely grant leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) reinforces "the principle that cases `should be tried on their merits rather than the technicalities of pleadings.'" Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir.1982)). However, "a party must act with due diligence if it intends to take advantage of the Rule's liberality." United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1202 (6th Cir. 1995). In determining whether justice requires leave to amend, the court can consider whether allowing the amendment will result in undue prejudice to the opposing party and whether the moving party exhibits undue delay, bad faith, or a dilatory motive. Foman, 371 U.S. at 182. Further, the court may deny leave to amend where it appears that doing so would be futile. Id. "Amendment of a complaint is futile when the proposed amendment would not permit the complaint to survive a motion to dismiss." Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005).
Leave to amend should be granted for several reasons. First, Plaintiff's Motion was filed on September 21, 2017, approximately three weeks after he took Chief Schoonover's deposition. This modest time lapse is commensurate with due diligence. Second, considering that Chief Schoonover and Sergeant Minnich already have been deposed and questioned extensively about the Internal Affairs Section investigation—or alleged lack thereof—Sheriff Neil and the Hamilton County Sheriff's Office will not be unduly prejudiced.
Finally, and most importantly, reinstatement of Count 5 would not be a futile. As Plaintiff correctly maintains, "[u]nder appropriate circumstances, even a single act or decision may qualify as an official government policy, though it be unprecedented and unrepeated." H.M. v. Bd. of Educ. of Kings Local School Dist., 117 F.Supp.3d 992, 1007 (S.D. Ohio 2015) (quoting Holloway v. Brush, 220 F.3d 767, 773 (6th Cir. 2000) (en banc)). But an act will be construed as "official policy" only when it is "of a body or an official `responsible for establishing final government policy respecting such activity[.]'" Holloway, 220 F.2d at 773 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). Indeed, Plaintiff's failure to allege that Sheriff Neil himself knew of Plaintiff's claim of use of excessive force by one of the deputies is the very shortcoming on which his previous ratification claim was dismissed by the Court. See supra pp. 4-5. This deficiency is now cured, however, with the inclusion of the new evidence discovered.
During his deposition, Chief Schoonover testified unequivocally that he serves as Sheriff Neil's official designee regarding investigations into officer misconduct, including accusations of use of excessive force. He acknowledged that he knew of Plaintiff's claim that he had been the victim of excessive force and, in response, directed the Internal Affairs Section—specifically Sergeant Minnich—to investigate. And Schoonover concurred with the recommendation by Minnich to "leave the case open until more evidence can be located." (Doc. 63-1 at PageID 738.)
For all these reasons, to ensure that Plaintiff's case is tried fully on the merits, the undersigned concludes that justice requires the grant of Plaintiff's Motion.
Consistent with the foregoing analysis,
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendations ("R&R") within
(Id. at 738.) During his deposition taken on August 24, 2017, Minnich testified he made no efforts to follow-up with the Cincinnati Police Department to learn if there might be an incident report containing Plaintiff's contact information. (Doc. 63 at PageID 707-08 (38:23-39:8).) Further, he denied ever seeing the incident report completed on November 10, 2013 by Cincinnati Police Officer (and original Defendant) Jeffrey Gramke that listed Plaintiff's address and telephone number. (Id. at PageID 706-07 (37:17-38:22); see Doc. 59-1.)
