GREG WHITE, Magistrate Judge.
On July 29, 2014, Plaintiff Richard Pettry (hereinafter "Plaintiff") filed a Complaint. (ECF No 1.) On July 30, 2014, Plaintiff filed a Corrected Complaint alleging: (1) an unreasonable seizure and use of force in violation of 42 U.S.C. § 1983 against numerous EMS responders and police officers of the City of Parma
After a case management conference before Judge Lesley Wells, a deadline of January 30, 2015 was set for joining parties and/or amending the pleadings. (ECF No. 13.) On December 18, 2014, this matter was referred to this Court for supervision of all pretrial matters and determination of all non-dispositive pretrial motions. (ECF No. 17.)
On July 28, 2015, Plaintiff filed a motion to amend the complaint instanter. (ECF No. 42.) On August 18, 2015, all Defendants filed an objection. (ECF No. 45.) On September 2, 2015, Plaintiff filed a reply in support of his motion to amend. (ECF No. 47.) This motion is now ripe for review.
Federal Rule of Civil Procedure 15 governs Amended and Supplemental Pleadings. It reads as follows:
As the time to amend as a matter of course has expired, Plaintiff's motion to amend is governed by Rule 15(a)(2). Factors that may affect that determination include undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendment, undue prejudice to the opposing party, and futility of the amendment. See, e.g., Wade v. Knoxville Utils. Bd., 259 F.3d 452, 459 (6
Plaintiff's motion to amend seeks to add as defendants Parma police chief Robert Miller,
Defendants have not consented to amending the pleadings, but rather maintain that Plaintiff's motion to amend should be denied. (ECF No. 45.) Generally, Defendants contend that allowing an amendment would be futile. Defendants' argument is rather puzzling, as the proposed First Amended Complaint (ECF No. 42-1, Exh. 1) merely seeks to add new parties and to substitute policymaking individuals previously identified only as John Does. The proposed amendments do not add any new counts or causes of action. Despite now alleging that Plaintiff's amendments would be futile because the new complaint would be unable to withstand a motion to dismiss, it bears noting that Defendants never filed a motion to dismiss the original complaint.
More specifically, Defendants aver that this case is not about seizures as "[i]t is undisputed that Plaintiff was no longer having a seizure when the Parma EMTs arrived ..." (ECF No. 45 at 4-8.) Plaintiff, however, does indeed dispute this contention and cites the opinion of Kathryn Davis, M.D., for the proposition that a person may be suffering a seizure "even without the appearance of convulsive activity." (ECF No. 47-1, Exh. 1) (emphasis in original). Furthermore, as Defendants are well aware, "when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007)). As such, the Court does not accept Defendants' first argument against amending the complaint.
Second, Defendants appear to argue that the federal § 1983 claim is defeated by the immunity conferred upon emergency medical service providers pursuant to O.R.C. § 4765.49(E). (ECF No. 45 at 9.) Defendants cite no law to support this proposition. District courts have found that Ohio's political subdivision immunity statute, O.R.C. § 2744.02(A), does not grant defendants governmental immunity from a plaintiff's claims under 42 U.S.C. § 1983 for alleged violations of constitutional rights. See, e.g., Owens v. City of Columbus, No. 03-CV-696, 2006 WL 783437, at *3 (S.D. Ohio Mar. 27, 2006). Defendants do cite some boilerplate law concerning qualified immunity, but fail to set forth a meaningful analysis of how it applies to the case at bar. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6
Finally, Defendants argue that the addition of the so-called policymaker Defendants after so much delay would be prejudicial. (ECF No. 45 at 11-12.) Other than a conclusory assertion, Defendants have failed to offer a meaningful explanation as to how said Defendants would be prejudiced. As stated above, delay alone is not a sufficient reason to deny leave to amend. Moreover, this Court is not inclined to punish Plaintiff for waiting until discovery revealed the identity of the relevant policy makers. The original complaint specifically named "Defendants John Doe Policymakers 6-10." (ECF No. 4 at ¶38.) Under these circumstances, no prejudice has been demonstrated.
For the foregoing reasons, Plaintiff's first Motion for Leave to Amend the Complaint (ECF No. 42) is hereby granted.
IT IS SO ORDERED.