Estate of James Strong Jr., The et al v. City of Northglenn, Colorado, The et al

Filing 84

ORDER Denying 72 Plaintiffs' Motion for Leave to File Second Amended Complaint, by Judge William J. Martinez on 6/26/2018. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1276-WJM-MEH
ESTATE OF JAMES STRONG, JR.
LANHISHA RICHMOND, individually and as natural parent of minors J.S. and T.S.R.,
MARCUS STRONG, and
HOWARD MITCHELL, JR.,
Plaintiffs,
v.
CITY OF NORTHGLENN, COLORADO,
CITY OF THORNTON, COLORADO,
CITY OF WESTMINSTER, COLORADO,
NICHOLAS WILSON,
JASON SCHLENKER, and
ADAM NIELSEN,
Defendants.

ORDER DENYING PLAINTIFFS’ MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT

This civil rights action seeks to hold various police departments in Colorado and
certain of their employees accountable for the shooting death of James Strong, Jr.
(“Strong”), who died during a search of his home in May 2015. This matter is currently
before the Court on Plaintiffs’ Motion for Leave to File a Second Amended Complaint
(the “Motion”). (ECF No. 72.) Defendants oppose the Motion. For the reasons
explained below, Plaintiffs’ Motion is denied but Plaintiffs are once again, for a final
time, permitted to file a motion for leave to file an amended complaint.

I. BACKGROUND
The Court incorporates by reference its discussion of the factual background of
this action in its Order Granting Defendants’ Partial Motion to Dismiss (ECF No. 59). In
short, this action arises out of the fatal shooting of Strong by the police in May 2015.
(ECF No. 33 ¶¶ 5–6, 18–19.) On May 29, 2015, Strong and his common-law wife
Lanhisha Richmond (“Richmond”) were asleep in their home in Northglenn, Colorado,
along with minor children J.S. and T.S.R., Strong’s brother Marcus Strong, and friend
Howard Mitchell, Jr. (Id. ¶¶ 7–10, 18.) Police officers, including Defendants Nicholas
Wilson (“Wilson”), an officer with the Northglenn Police Department, and Defendant
Jason Schlenker (“Schlenker”), an officer with the Thornton Police Department, entered
the home, acting on a “no knock warrant” issued nine days earlier to lead investigator
Adam Nielsen (“Nielsen”), an employee of Westminster. (Id. ¶¶ 15–16, 25, 31, 40.)
Strong picked up a gun and fired two shots when an “intruder” began to enter the
bedroom. (Id. ¶¶ 21, 25.) The person was Officer Wilson, who fired his weapon at
Strong. (Id. ¶ 26.) Strong fell to the floor and fired a third shot. (Id.) Wilson continued
firing at Strong, “through the bedroom wall as he retreated down the hall.” (Id. ¶ 27.)
Schlenker then entered the bedroom and repeatedly shot Strong with a .233 caliber
rifle. (Id. ¶ 31.) Strong had multiple gunshot wounds and died from the resulting
injuries. (Id. ¶ 38.) Richmond, Marcus Strong, and Howard Mitchell, Jr., the three
adults in the home at the time, were handcuffed and jailed, and the minor children
placed in state custody. (Id. ¶ 45.)
Plaintiffs filed their Complaint on May 25, 2017 (ECF No. 1) and an Amended

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Complaint on August 15, 2017 (ECF No. 33). The Amended Complaint pled nine
claims: excessive force claims brought by the Estate of Strong (“the Estate”) against
both Wilson and Schlenker (Claims 1 & 2); a claim by the Estate against Nielsen for
Failure to Intervene (Claim 3); municipal liability claims by the Estate against the Cities
of Northglenn, Thornton, and Westminster (“the Cities”) (Claims 4–6); and three
separate claims against Wilson and Schlenker for false arrest brought by Richmond on
behalf of herself and the minor children (Claim 7), by Marcus Strong (Claim 8), and by
Howard Mitchell, Jr. (Claim 9).
In August 2017, Defendants moved to dismiss Claim 3 against Nielsen and
Claims 4–6 against the Cities. (ECF No. 35.) On April 5, 2018, the Court granted
Defendant’s motion, and dismissed Claim 3 with prejudice and Claims 4–6 without
prejudice (“the Order”). (ECF No. 59 at 18–19.) The Court also granted Plaintiffs leave
to file a second amended complaint “no later than May 31, 2018 (i.e., simultaneously
with the discovery cutoff deadline, as currently extended (see ECF No. 52)).” (Id.
at 19.)
On May 31, 2018, Defendants filed an unopposed Motion for Extension of Time
to Complete Discovery for the purpose of taking four additional depositions. (ECF
No. 70.) On June 1, 2018, U.S. Magistrate Judge Michael E. Hegarty granted
Defendant’s motion and modified, among other deadlines, the discovery cut-off in the
Scheduling Order to June 29, 2018. (ECF No. 73.) On that same day, Plaintiffs filed
the present Motion seeking leave to amend their complaint. (ECF No. 72.)

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II. DISCUSSION
A.

Timeliness of Motion for Leave to Amend
1.

Standards under Rule 15(a) and Rule 16(b)

Federal Rule of Civil Procedure 15(a) states that leave to amend a complaint
“shall be granted freely when justice so requires.” Fed. R. Civ. P. 15(a). “Refusing
leave to amend is generally only justified upon a showing of undue delay, undue
prejudice to the opposing party, bad faith or dilatory move, failure to cure deficiencies
by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc.,
3 F.3d 1357, 1365 (10th Cir. 1993).
Under Rule 16(b)(4), a scheduling order may be modified “only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Thus, where a motion for leave
to amend is filed after the court-ordered deadline, the court engages in a two-step
analysis: (1) does the motion meet the requirements of Rule 16(b); and if so, (2) does
the motion meet the requirements of Rule 15(a)? Birch v. Plaris Indus., Inc., 812 F.3d
1238, 1247 (10th Cir. 2015).
2.

Analysis

Given the Court’s wording of the deadline in its Order and the parties’ agreement
to extend discovery, there is some ambiguity as to the final deadline for amending the
complaint.
In the Order, the Court indicated that Plaintiffs would be permitted to amend their
complaint until the discovery deadline, recognizing the fact-intensive nature of Plaintiffs’
claims and the necessity of discovery into the Cities’ policies to set forth a claim of

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municipal liability. (ECF No. 59 at 19.) On the day of the discovery deadline and
deadline for amending the complaint, Defendants submitted an unopposed motion to
extend the discovery deadline to take additional depositions, including that of George
Mosher, Plaintiffs’ police practices expert. (ECF No. 70.) Judge Hegarty granted
Defendants’ motion “for good cause shown.” (ECF No. 73.)
Because the discovery and amendment deadlines were linked in the Order, the
parties could well have understood that the extension of the discovery deadline would
also extend the deadline to file a motion for leave to amend. Indeed, extension of the
amendment deadline to coincide with discovery deadlines would effectuate the Court’s
intent to facilitate the inclusion in such an amended complaint any new facts about the
Cities’ training practices which were learned during the extended discovery. The Court
therefore finds that the deadline for filing the amended complaint was extended
simultaneously with the extension of the discovery deadline, and therefore, the Motion
was not late under Rule 16(b). The Court thus turns to the question of whether leave
should be granted under Rule 15(a).
B.

Futility of Amendment
Under Rule 15(a), courts generally grant leave to amend liberally. Fed. R. Civ.

P. 15(a). Proposed amendment is futile if the amended complaint “would be subject to
dismissal for any reason.” Watson v. Beckel, 242 F.3d 1237, 1240 (10th Cir. 2001).
“The futility question is functionally equivalent to the question whether a complaint may
be dismissed for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th
Cir. 1999).

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Defendants contend that amendment would be futile because the changes to
Claims 4–6 are “immaterial” and do not support claims of unconstitutional policy or
municipal liability. (ECF No. 77 at 6–7.) In their reply, Plaintiffs summarily argue that
the proposed amendments to Claims 4–6 are not futile, and removal of several claims
will help to streamline this litigation. (ECF No. 79 at 3–4.) For the following reasons,
the Court agrees with Defendants. The Court will address each claim in turn.
1.

Claims 4 and 5

In its Order, the Court dismissed Claim 4 against Northglenn and Claim 5 against
Thornton for failure to include factual allegations of a training deficiency, each city’s
awareness of an alleged training deficiency, or any municipal policy, practice, or custom
as the “moving force” behind a constitutional violation. (ECF No. 59 at 17–18.)
Plaintiffs’ proposed amended complaint makes no material amendments to Count 4 to
address any of the reasons upon which the Court initially based its decision to dismiss
the claim. (ECF No. 72-1 ¶¶ 80–97.) Thus, the proposed Claim 4 would be subject to a
motion to dismiss on the same grounds as the prior Claim 4, and as a consequence the
Court concludes that granting the Motion to allow amendment of Claim 4 would be
futile. The Court therefore denies Plaintiffs’ motion for leave to amend as to Claim 4.
Plaintiffs attempt to revive their claim against Thornton1 by adding allegations of
lack of training on insurgency and forcible entry, Thornton’s awareness that lack of

1

Plaintiffs refer to the city of “Torrington” in paragraph 101 of its proposed amended
complaint. To the Court’s knowledge, there is no city of Torrington in Colorado. Like
Defendants, this Court assumes that this is a clerical error by Plaintiffs. (See ECF No. 77 ¶ 6.)
Plaintiffs must correct all clerical errors, including this one, if they elect to file another motion for
leave to amend the complaint.

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training would result in injuries to officers and citizens, and a connection between the
training deficiency and the injuries to Strong. (ECF No. 72-1 ¶¶ 105, 110.) These
additional allegations begin to address the pleading deficiencies outlined in the Court’s
Order. However, absent additional, specific factual allegations, these additional
conclusory statements, in their current form, would still not survive a motion to dismiss.
See Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). W ithout prejudging the issue, the Court notes
that if Plaintiffs were to provide factual allegations to support these conclusory
statements, Plaintiffs may be able to state a claim on which relief can be granted. The
Court therefore denies Plaintiffs’ motion for leave to amend as to Claim 5, but, as
further discussed below, grants leave to Plaintiffs to file a motion for leave to further
amend their complaint as to Claim 5 by August 31, 2018.
Plaintiffs are advised that further amendment, if any, to Claim 5 should address
(1) factual allegations of the training provided, how training was deficient, or lack of
adequate training; (2) factual allegations regarding prior instances of similar conduct by
other officers or establishing that Thornton was aware of but disregarded problems with
its training; (3) facts showing illegal action pursuant to the decision of a policy maker;
and/or (4) facts suggesting that the illegal action resulted from a training deficiency
rather than individual misconduct. (See ECF No. 59 at 13–18.) Absent such
allegations, the Court will again deny a motion for leave to amend the complaint as to
this claim.
2.

Claim 6

The Court also previously dismissed Claim 6 because Plaintiffs did not plead that
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Nielsen or any other person involved in the incident at issue was an employee of
Westminster and, even though Defendants acknowledged that Nielsen was a
Westminster employee, Plaintiffs failed to plead facts to show that Nielsen committed a
constitutional violation. (ECF No. 59 at 13.) In its proposed complaint, Plaintiffs drop
the former Claim 3 (which alleged that Nielsen violated Strong’s constitutional rights by
failing to intervene), consistent with the Court’s dismissal with prejudice of that claim.
(ECF No. 72.) While Plaintiffs add other statements to Claim 6 to bolster their claim
against Westminster, Plaintiffs fail to add any factual allegations of unconstitutional
activity against any employee of Westminster. (ECF No. 72.) Absent allegations of a
constitutional violation carried out by a Westminster city employee, Plaintiffs’
Monell claim against Westminster fails to state a claim on which relief can be granted.
See Robbins, 519 F.3d at 1247; Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).
Therefore, the Court finds that the proposed amendments to Claim 6 would also be
futile, and as a result denies Plaintiffs’ Motion as to Claim 6.
C.

The Necessity for the Court to Make Use of Its Inherent Power to
Manage its Docket and This Litigation
The Court sua sponte raises concerns about Plaintiffs’ counsel’s ability to

competently litigate these significant claims on behalf of his clients. At least in part,
these representational deficiencies appear to arise out of the fact that, as out-of-state
counsel with apparently little to no experience with the rules, practice standards, and
culture of this District Court, Plaintiffs’ interests are being adversely affected by the lack
of experienced local counsel versed in the intricacies attendant to the competent,
vigorous representation of clients in the District of Colorado.
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In this regard, the Court notes that federal district courts have the inherent power
to manage their dockets “to achieve the orderly and expeditious disposition of cases” as
long as the action is a reasonable response to a specific problem and does not
contradict any express rule or statute. Dietz v. Bouldin, 136 S. Ct. 1885, 1891–92
(2016). Moreover, “[c]ourts have the inherent power to impose a variety of sanctions on
both litigants and attorneys in order to regulate their docket, promote judicial efficiency,
and deter frivolous filings.” Clark v. C.I.R., 744 F.2d 1447, 1447 (10th Cir. 1984); see
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (“[T]he inherent power extends to a full
range of litigation abuses.”). District courts also may sanction attorneys and parties
who disregard schedules and time limits. MacAlmon Music, LLC v. Maurice Sklar
Ministries, Inc., 2015 WL 794328 at *9 (D. Colo. Feb. 4, 2015).
Plaintiffs’ counsel’s near failure to timely submit a motion for leave to file an
amended complaint within a generous sixty-day period, and failure to actually amend
claims which were previously dismissed by the Court are merely the latest actions
which give this Court pause. 2 Plaintiffs’ Motion failed to even acknowledge the possible
untimeliness of its filing until the reply brief. The Court notes that Plaintiffs’ benefitted
from a procedural fluke and, absent those unusual circumstances, the Court would
have had no choice but to deny any further attempts by Plaintiffs to amend their
complaint.

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The Court has little tolerance for “the dog ate my homework”-type excuses for failing to
meet filing deadlines. The Court expects that, should counsel experience any problem with the
electronic court filing system in the future, counsel will promptly notify this Court’s chambers via
telephone at [phone] or e-mail at [e-mail], and provide
the filing by e-mail to this Court and opposing counsel.

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Plaintiffs’ counsel has also failed to respond to an e-mail from the Judge Hegarty
regarding availability for a status conference, missed a May 24, 2018 status conference
before Judge Hegarty, and neglected to file a response to Defendants’ motion for
sanctions against Marcus Strong for failure to appear at his deposition. (ECF No. 83 at
1–2.) Judge Hegarty issued a recommendation to grant Defendants’ first motion for
sanctions for failure of Marcus Strong to appear for his deposition, and Defendants
recently filed a second motion for sanctions seeking to dismiss the majority of the
claims in the action. (ECF No. 83; see ECF No. 67; ECF No. 81.) Plaintiffs’ counsel’s
pattern of missed deadlines demonstrates a lack of familiarity with the District of
Colorado Local Rules and a lack of professionalism in the face of the gravity of the
claims in this case. See generally, D.C.COLO.LCivR; D.C.COLO.LAttR.
Plaintiffs’ counsel’s lack of compliance with scheduling deadlines and lack of
diligence in representing Plaintiffs in this action has impacted the orderly and
expeditious disposition of this litigation. See Dietz, 136 S. Ct. at 1891. In light of the
seriousness of the claims in this case, and in the interests of justice, judicial efficiency,
and effective docket management, the Court in its discretion directs Mr. Stewart to
immediately associate himself with co-counsel local to Colorado with significant
experience in federal § 1983 litigation to assist in the future prosecution of this case.
In order to allow counsel and the parties to appropriately effect the intent of this
Order, the Court sua sponte amends the Scheduling Order (ECF No. 28), as well as the
Minute Order Modifying the Scheduling Order (ECF No. 73), as follows:

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New discovery cut-off date:

August 15, 2018

New dispositive motion deadline:

September 30, 2018

The parties are advised that the Court will not consider any further extension of
the discovery and dispositive motion deadlines in this case.
III. CONCLUSION
For the reasons stated above, the Court ORDERS as follows:
1.

Plaintiffs’ Motion for Leave to File a Second Amended Complaint is DENIED.

2.

Plaintiffs’ counsel is DIRECTED to associate himself with local co-counsel in
Colorado with significant experience in the prosecution of federal court § 1983
claims by August 15, 2018;

3.

Plaintiffs are granted leave to file a motion for leave to file a second amended
complaint only as to Claims 1, 2, and 5 by August 31, 2018; and

4.

Plaintiffs’ counsel is directed to SERVE a copy of this order on his clients, as the
Court assumes is his typical practice, by June 29, 2018, and within one
business day of such service, to FILE a certificate of service of same with the
Court.
Dated this 26th day of June, 2018.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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