H.E. v. Horton et al

Filing 60

OPINION AND ORDER denying Plaintiff H.E.'s, by and through William and Jennifer Emerich, her adoptive parents and legal guardians as next friends, Motion for Leave to File a Second Amended Complaint 57 . Signed by Judge William S. Duffey, Jr on 8/31/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
H.E., by and through William and
Jennifer Emerich, her adoptive
parents and legal guardians as next
friends,
Plaintiff,

1:15-cv-3792-WSD

v.
FRANK BERRY, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff H.E.’s, by and through William
and Jennifer Emerich, her adoptive parents and legal guardians as next friends,
(“Plaintiff”) Motion for Leave to File a Second Amended Complaint [57] (“Second
Amendment Motion”).
I.

BACKGROUND
Plaintiff is a seven-year old child who suffers from certain psychiatric and

emotional illnesses. (First Amended Complaint [25] (“Am. Compl.”) ¶¶ 2, 21).
On October 29, 2015, Plaintiff filed her Complaint [1] alleging claims under
42 U.S.C. § 1983. On May 10, 2016, after receiving leave of the Court, Plaintiff
filed her Amended Complaint seeking a preliminary injunction ordering

Defendants Clyde Reese (“Reese”) and Frank Berry (“Berry”),1 in their official
capacities, to approve Plaintiff’s placement at an appropriate Psychiatric
Residential Treatment Facility (“PRTF”) or Residential Treatment Center
(“RTC”). (Am. Compl. ¶¶ 1, 43, 46). Plaintiff also sought monetary damages
from seven additional Defendants,2 in their individual capacities, for “improperly
categorizing [Plaintiff’s] eligibility for Medicaid; failing to correct [Plaintiff’s]
Medicaid eligibility with knowledge of the improper categorization; and []
obstructing [Plaintiff’s] access to appropriate [] services with concerted and
deliberate indifference towards [Plaintiff’s] health and wellbeing.” (Am. Compl. ¶
1).
On May 24, 2016, Defendants filed their Motion to Dismiss [28] the claims
against Defendants in their individual capacities and the claims for money

1

Defendants Clyde Reese and Frank Berry have been referred to throughout
the action as the “Official Capacity Defendants.” On January 3, 2017, the Court
entered an order [52] substituting Frank Berry as the named defendant for the
Georgia Department of Community Health, and Judy Fitzgerald as the named
defendant for the Georgia Department of Behavioral Health and Developmental
Disabilities. This Order uses “Official Capacity Defendants” to describe Reese,
Berry, and Fitzgerald, interchangeably.
2
Defendants Keith Horton, Bobby Cagle, Carol Christopher, Adrian Owens,
Fabienne Michel, Laverne Zephir, and Leegayle Harvill are referred to as the
“Individual Capacity Defendants.”
2

damages.3 On November 7, 2016, the Court granted the Motion to Dismiss in part
and denied it in part [43] (“Motion to Dismiss Order”). The Court dismissed the
seven Individual Capacity Defendants from the action and Plaintiff’s claims for
monetary damages against them. (Motion to Dismiss Order at 44). The Court did
not dismiss Plaintiff’s claims for injunctive relief against the Official Capacity
Defendants. (Motion to Dismiss Order at 44). The Court denied, without
prejudice, Plaintiff’s Motion for Preliminary Injunction [34]. (Motion to Dismiss
Order at 44). On November 18, 2016, Plaintiff filed her Renewed Motion for
Preliminary Injunction [45] (“Pl Ren. Mot.”), seeking Plaintiff’s admission to one
of two facilities, Jasper Mountain or Santa Maria, specializing in treatment of
Plaintiff’s disorder. (Pl. Ren. Mot. at 1-2). On January 16, 2017, Plaintiff was
admitted to Jasper Mountain. (Second Amendment Motion at 7). On
January 30, 2017, upon agreement of the parties, the Court entered an order to stay
the Renewed Motion for Preliminary Injunction. (January 30, 2017, Docket Entry
Staying Pl. Ren. Mot.).
On March 23, 2017, Plaintiff filed her Second Amendment Motion,
attaching her Proposed Second Amended Complaint. Plaintiff seeks to add a new
3

On June 24, 2016, the Court stayed discovery pending final resolution of
Defendants’ Motion to Dismiss.
3

claim against former Defendant, Bobby Cagle (“Cagle”).4 Plaintiff seeks damages
against Cagle for retaliatory acts he allegedly committed in violation of the
Americans with Disabilities Act (“ADA”). (Second Amendment Motion at 1).
The Proposed Second Amended Complaint states Plaintiff’s parents, William and
Jennifer Emerich, communicated with various third parties during the summer and
early fall of 2014 about issues they were experiencing in obtaining Medicaid
services. (Second Amendment Motion at 19). The Proposed Second Amended
Complaint also alleges that, in retaliation, Cagle sought to “take custody of H.E.
and terminate William and Jennifer’s parental rights.” (Second Amendment
Motion at 20). On April 6, 2017, Defendants filed their Opposition to Plaintiff’s
Motion for Leave to File a Second Amended Complaint [58] (“Response”).
Defendants oppose the Second Amendment Motion on two grounds: (1) Plaintiff
unduly delayed in seeking to add the claim against former Defendant Cagle and, in
doing so, (2) unduly prejudiced the Defendants and Cagle. (Response at 4-8).

4

Plaintiff’s attempt to incorporate paragraphs 1 through 42 of the Amended
Complaint as paragraph 54 of Count III of the Second Amended Complaint is
improper. In doing so, Plaintiff incorporates facts and allegations specific to her
42 U.S.C. § 1983 claim—which is now largely moot.
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II.

DISCUSSION
A.

Legal Standard

Rule 15(a) of the Federal Rules of Civil Procedure allows a plaintiff to file
one amended complaint, as a matter of course, if the amended complaint is filed
within 21 days of service of the original complaint or within 21 days of the
defendant’s filing of a responsive pleading or Rule 12 motion to dismiss. See Fed.
R. Civ. P. 15(a)(1). Amended complaints may be filed outside of these time limits
only “with the opposing party’s written consent or the court’s leave.” See Fed.
R. Civ. P. 15(a)(2).
Rule 15 of the Federal Rules of Civil Procedure provides that “[t]he court
should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.
15(a)(2). “There must be a substantial reason to deny a motion to amend.”
Laurie v. Alabama Court of Criminal Appeals, 256 F.3d 1266, 1274 (11th Cir.
2001). “Substantial reasons justifying a denial include ‘undue delay, bad faith,
dilatory motive on the part of the movant, . . . undue prejudice to the opposing
party by virtue of allowance of the amendment, [and] futility of amendment.’” Id.
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

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B.

Analysis

Plaintiff claims it should be permitted leave to amend under Rule 15(a) to
allege a claim of retaliation in violation of the ADA against former Defendant,
Bobby Cagle. Defendant argues Plaintiff’s new claim is (1) unduly delayed and
(2) unduly prejudicial.
1.

Undue Delay and Undue Prejudice

“A district court may find undue delay when the movant knew of facts
supporting a new claim long before the movant requested leave to amend, and
amendment would further delay the proceedings.” Haynes v. McCalla Raymer,
LLC, No. 1:11-cv-3149-TWT, 2014 WL 3908433, at *7 (N.D. Ga. Aug. 7, 2014)
(holding the plaintiffs failed to “present a reasonable justification” for delaying
amendment until “after summary judgment was filed, after the close of discovery,
and more than two years after they filed their original Complaint”); see also SHM
Int’l Corp. v. Guangdong Chant Grp., Inc., No. 1:14-cv-1446-ODE, 2016 WL
4204553, at *4 (N.D. Ga. June 29, 2016) (denying amendment where the plaintiff
provided “no reason as to why it waited just under two years to amend its
Complaint to include [] additional facts when it [] possessed [the] information
during the entirety of [the] litigation, including the two previous instances in which
[it] was allowed to amend”).
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Plaintiff’s Second Amendment Motion is unduly delayed, and if allowed, the
amendment would unduly prejudice Defendants. Plaintiff’s proposed new
retaliation claim, and the facts allegedly supporting it, were known to Plaintiff for
approximately one year before this action was filed. (Second Amendment Motion
at 27). In addition, Plaintiff waited more than two years after the discovery of the
facts that purport to support Plaintiff’s new claim to request permission to add it.
Despite knowing these facts, Plaintiff did not include the claim in her First
Amended Complaint, choosing instead to amend it after Defendants’ Motion to
Dismiss was filed and largely granted, ordering the dismissal of Cagle and the
other Individual Capacity Defendants. Although discovery on the claim in the case
is currently stayed, it is effectively concluded. A stay of discovery was granted
pending a decision on Defendant’s Motion to Dismiss. The majority of the claims
requiring discovery were dismissed. Plaintiff’s only remaining claims involve
injunctive relief—relief which Defendants have already substantially provided to
Plaintiff. H.E. is receiving treatment at one of the facilities to which she requested
to be admitted in Plaintiff’s Renewed Motion for Preliminary Injunction. (Second
Amendment Motion at 7).
Plaintiff’s allegation that she waited to file her retaliation claim to avoid
further retaliation is unpersuasive. (Second Amendment Motion at 14). Plaintiff
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filed the action, amended her complaint, and has continued to pursue this action for
the past two years. It is not credible that she waited to assert this claim to avoid
some potential, undescribed retaliation.
It is unduly prejudicial to permit Plaintiff to now add at this late stage in the
litigation a claim that was known to her at least one year before she first filed this
action, and after the Defendant she now seeks to allege a new claim against was
dismissed from the case. An amendment would allow Plaintiff to continue to
litigate an action that is nearing its conclusion.
Plaintiff’s Second Amendment Motion to add a claim for retaliation against
former Defendant Bobby Cagle is denied because it was unduly delayed and, if
allowed, would unduly prejudice the Defendants.
2.

Futility

The Court also denies Plaintiff’s Second Amendment Motion on the ground
of futility. “A district court may deny leave to amend a complaint if it concludes
that the proposed amendment would be futile, meaning that the amended complaint
would not survive a motion to dismiss.” Christman v. Walsh, 416 Fed. App’x 841,
844 (11th Cir. 2011); Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th
Cir. 1999) (“[D]enial of leave to amend is justified by futility when the ‘complaint
as amended is still subject to dismissal.’” (quoting Halliburton &
8

Assoc., Inc. v. Henderson, Few & Co., 774 F.2d 441, 444 (11th Cir. 1985)));
Bazemore v. U.S. Bank, N.A., No. 1:14-cv-3310, 2016 WL 889676, at *5 (N.D.
Ga. Mar. 8, 2016) (“Futility means that the amended complaint would fail to state a
claim upon which relief could be granted. Thus, the same standard of legal
sufficiency as applied under a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) is used to determine futility.” (internal citation omitted));
Bill Salter Adver., Inc. v. City of Brewton, AL, 2007 WL 2409819, at *2 (S.D.
Ala. Aug.23, 2007) (“The futility threshold is akin to that for a motion to dismiss;
thus, if the amended complaint could not survive Rule 12(b)(6) scrutiny, then the
amendment is futile and leave to amend is properly denied.”).
To establish a prima facie case of retaliation under the ADA, Plaintiff must
show that (1) she engaged in statutorily protected activity; (2) Defendant was
aware of this activity; (3) Defendant took adverse action against her; and (4) a
causal connection exists between the protected activity and the adverse action. See
Ganstine v. Sec’y, Florida Dep’t of Corr., 502 F. App’x 905, 910 (11th Cir. 2012);
see also Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004) (quoting Weeks
v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002)). The ADA’s antiretaliation provision allows retaliation claims against public entities. Id.
Assuming, arguendo, that Plaintiff engaged in statutorily protected
9

expression, she fails to allege Cagle was aware of this activity. Aside from an
allegation that Plaintiff told Cagle “it was an election year, and that maybe she
would go to the media,” Plaintiff alleges no facts showing Cagle knew she
contacted third parties. (Second Amendment Motion at 27). Plaintiff also fails to
allege that Cagle had any direct involvement in the alleged adverse action.
Plaintiff claims that Bridget Kratzer (“Kratzer”), a case manager allegedly assigned
by Cagle, “visited the Emerich home unannounced and took H.E. and her sister
into DFCS custody.” (Second Amendment Motion at 27-28). There is no
allegation that Cagle directed or had any involvement in Kratzer’s action. In fact,
Plaintiff states this action took place “the day after Mr. Cagle personally
communicated to Jennifer and William that he was increasing the adoption subsidy
and that H.E. would be receiving additional services.” (Second Amendment
Motion at 27). The only other allegation in Plaintiff’s Proposed Amended
Complaint that could be construed as a retaliatory act is Plaintiff’s claim that Cagle
“falsely accused Jennifer and/or William of neglecting or abusing H.E.” (Second
Amendment Motion at 29). Plaintiff provides no additional factual allegations as
to when, how, or where this occurred. Her claim is vague and conclusory.
Without more, it is insufficient to show Cagle personally took adverse action
against Plaintiff.
10

Plaintiff’s Second Amendment Motion to add a claim for retaliation against
former Defendant Bobby Cagle is denied on the alternative ground of futility.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff H.E.’s, by and through William

and Jennifer Emerich, her adoptive parents and legal guardians as next friends,
Motion for Leave to File a Second Amended Complaint [57] is DENIED.

SO ORDERED this 31st day of August, 2017.

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