Harrison v. City of Fort Wayne et al

Filing 30

OPINION AND ORDER: The Court GRANTS the Motion to Reconsider the Court's Ruling on the Defendants' Motion for Leave to File Amended Answer to Complaint, Counter-Claim, and Jury Demand 21 , and DENIES as moot the Motion for Leave to File Sur-Response 26 . The Court REAFFIRMS the Opinion and Order 20 , but GRANTS Defendants leave to file, on or before 8/9/2018, a renewed motion for leave to amend their answer to bring a counterclaim against Plaintiff based on allegedly defamatory statements she made to Eric Zimmerman and Michael Manuel. Signed by Magistrate Judge Paul R Cherry on 7/25/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KEIONA HARRISON,
Plaintiff,

)
)
)
v.
)
)
CITY OF FORT WAYNE, OFFICER HOLLO,
)
OFFICER NICKLOW, OFFICER HAWTHORNE, )
and OFFICER MCCONNELL,
)
Defendant.
)

CAUSE NO.: 1:17-CV-419-PRC

OPINION AND ORDER
This matter is before the Court on a Motion to Reconsider the Court’s Ruling on the
Defendants’ Motion for Leave to File Amended Answer to Complaint, Counter-Claim, and Jury
Demand [DE 21], filed by Defendants on May 22, 2018. Plaintiff filed an objection on June 5, 2018,
and Defendants filed a reply on June 12, 2018. On June 14, 2018, Plaintiff filed a Sur-Response,
without first seeking leave of court, and on June 21, 2018, Defendants filed a Sur-Reply, also
without first seeking leave of court. On June 21, 2018, Plaintiff filed a belated Motion for Leave to
File Sur-Response [DE 26].
PROCEDURAL BACKGROUND
On September 27, 2017, Plaintiff Keiona Harrison filed a Complaint in the Allen County,
Indiana, Superior Court. (ECF 3). Therein, Plaintiff alleges claims under 42 U.S.C. § 1983 for
violations of her rights under the Fourth and Fourteenth Amendments to the United States
Constitution for excessive force during an arrest that occurred on May 13, 2017, due process
violations and racially profiling Plaintiff prior to and during the arrest, deprivation and loss of
liberty, and excessive force/due process violations for conducting a cavity search without cause or

reason and without a warrant. Plaintiff also alleges Indiana state law claims of battery and sexual
battery.
On October 5, 2017, Defendants removed the case to this Court. On October 10, 2017,
Defendants filed an Answer. The Court held a Rule 16(b) scheduling conference on November 8,
2017, at which time a February 1, 2018 deadline was set for Defendants to file any motion to amend
pleadings.
On April 30, 2018, Defendants filed a “Motion for Leave to File Amended Answer to
Complaint, Counter-Claim, and Jury Demand,” which sought to amend their Answer to add a
counterclaim for defamation and invasion of privacy brought by the four individual officer
defendants against Plaintiff.
On May 11, 2018, the Court denied Defendants’ motion to amend, finding that the motion
was untimely as it was filed after the February 1, 2018 deadline and that Defendants had not shown
good cause under Federal Rule of Civil Procedure 16(b) for extending the February 1, 2018 deadline
based on the allegations in the proposed counterclaim.
ANALYSIS
In the instant motion, Defendants ask the Court to reconsider its May 11, 2018 ruling
denying them leave to bring a counterclaim against Plaintiff for defamation and invasion of privacy.
The relevant paragraphs of the proposed counterclaim, filed with the Court as an attachment
to the original Motion for Leave to Amend, provide:
3. In the Complaint, Keiona Harrison made defamatory statements against
Detective Hollo, Detective Nicklow, Officer Hawthorne, and Officer McConnell.
Keiona Harrison falsely stated that these officers racially profiled Keiona Harrison;
used excessive force against Keiona Harrison; unlawfully searched Keiona
Harrison’s purse; conducted a cavity search of Keiona Harrison; that Officer
McConnell put “her finger into plaintiff’s vagina” and committed a sexual battery;
2

that the officers failed to intervene to prevent these alleged acts; and that the officers
targeted Keiona Harrison because of her race and color. Not only did Keiona
Harrison publish these false statements in Court, but they have also been reported in
several newspapers.
4. Further, Keiona Harrison made defamatory statements against Detective
Hollo and Officer McConnell in her deposition. These statements include sworn
testimony that Detective Hollo slammed Keiona Harrison’s chest and body twice
onto his police vehicle and that Officer McConnell inserted her fingers twice into
Keiona Harrison’s vagina. Keiona Harrison reported these same false statements to
Internal Affairs of the Fort Wayne Police Department.
5. Further, Keiona Harrison told her supervisors at the Allen County Adult
Probation Department that the officers cavity searched her and slammed her against
the police vehicle.
6. The above defamatory statements published by Keiona Harrison are false
and are not privileged. Keiona Harrison published these statements knowing that
they are false. Keiona Harrison has committed libel, slander, and defamation against
Detective Hollo, Detective Nicklow, Officer Hawthorne, and Officer McConnell.
(ECF 16-1, p. 9, ¶¶ 3-6) (emphasis added). The proposed counterclaim alleges that Plaintiff made
the false statements with malice and the intent to injure the four officers, that the defamatory
statements harmed the officers’ reputations, and that the false statements constitute defamation per
se. Id. at pp. 9-10, ¶ 7-9. The proposed counterclaim further alleges that Plaintiff committed the tort
of invasion of privacy by placing the officers in a false light that is highly offensive to a reasonable
person. Id. at p. 10, ¶ 10.
From the plain language of Paragraphs 3-6 of the proposed counterclaim quoted above, the
claim of defamation against the individual officers is based on (1) “defamatory statements” in the
Complaint, (¶ 3); the “defamatory statements” at Plaintiff’s deposition, (¶ 4); and what Plaintiff
“told” her supervisors, (¶5). Paragraph 6 references “the above defamatory statements,” which is a
direct reference to the allegations in at least Paragraphs 3 and 4 and likely Paragraph 5 as well.
Based on this plain language, the Court found in its May 11, 2018 Order that the proposed
3

counterclaim was untimely because Defendants knew of the allegations in the Complaint and the
statements at Plaintiff’s deposition well before the February 1, 2018 deadline yet did not show good
cause under Federal Rule of Civil Procedure 16(b) for waiting until April 30, 2018, to seek leave
to amend the answer to add the counterclaim.
In the instant Motion to Reconsider, Defendants assert that the proposed counterclaim is
based not on the alleged defamatory allegations in Plaintiff’s Complaint or on the allegedly
defamatory statements made at her deposition but rather on the allegedly defamatory statements
Plaintiff made to her supervisors in the Allen County Adult Probation Department—Eric
Zimmerman and Michael Manuel. Defendants contend that the references in the proposed
counterclaim to the allegedly defamatory statements in Plaintiff’s Complaint and in her deposition
testimony are “background.” (ECF 21, p. 4). Defendants reason that the allegations in the Complaint
are privileged and that the statements made in Plaintiff’s deposition are likely privileged but that the
statements Plaintiff made to her supervisors are not privileged. Id. Defendants represent that they
did not fully learn of the statements Plaintiff made to her supervisors until the depositions of
Zimmerman and Manuel on April 13, 2018. Id. Thus, Defendants argue that there is good cause to
extend the February 1, 2018 deadline to allow them to bring the counterclaim based on Plaintiff’s
allegedly defamatory statements to Zimmerman and Manuel.
First, the Court finds that the proposed counterclaim submitted on April 30, 2018 with the
original motion to amend is brought based on the allegations in Plaintiff’s Complaint, the statements
at Plaintiff’s deposition, and the statements to supervisors and is not based solely on the statements
to the supervisors as Defendants now assert. However, based on Defendants’ clarification that they
seek to bring the counterclaim based only on allegedly defamatory statements made to Plaintiff’s
supervisors Zimmerman and Manuel, the Court reconsiders its May 11, 2018 ruling and finds that
4

Defendants have shown good cause under Rule 16(b) for seeking leave to file a counterclaim after
the February 1, 2018 deadline based on the allegedly defamatory statements made by Plaintiff to her
supervisors Zimmerman and Manuel. Defendants did not learn the details of Plaintiff’s statements
to Zimmerman and Manuel until their depositions on April 13, 2018. Counsel for Defendants did
not receive the transcript of the depositions until April 19, 2018, and the motion for leave to amend
was filed shortly thereafter on April 30, 2018.
Second, without the allegations of the two paragraphs in the proposed counterclaim alleging
defamatory statements based on the Complaint and Plaintiff’s deposition, (ECF 16-1, p. 9, ¶¶ 3-4),
the remaining allegations do not state a claim of defamation and invasion of privacy against any of
the four individual officers based on statements made by Plaintiff to her supervisors. Paragraph 5
does not name the supervisors she spoke to, does not state which, if any, of the four individual
officer defendants Plaintiff named when speaking to her supervisors, and does not state what
allegedly defamatory statement she made to each supervisor about any individual officer. In contrast
with the allegations in Paragraphs 3 and 4, there is no allegation in Paragraph 5 that the statements
to her supervisors were defamatory. Moreover, it is unclear how Plaintiff’s Complaint or her
deposition testimony are “background” for a defamation counterclaim based on statements to her
supervisors; Plaintiff presumably made the allegedly defamatory statements to her supervisors on
or shortly after the events of May 13, 2017, whereas her Complaint was filed in September 2017 and
her deposition was taken in December 2017.
Accordingly, the Court reaffirms its May 11, 2018 ruling denying Defendants leave to file
the proposed amended answer and counterclaim as drafted in the attachment to the original motion
to amend. However, because there is good cause to extend the February 1, 2018 deadline to allow

5

the individual officer defendants to seek leave to bring a counterclaim based on allegedly
defamatory statements Plaintiff made to her supervisors Zimmerman and Manuel, the Court grants
Defendants leave to file a renewed motion to amend with a redrafted proposed amended answer and
counterclaim that is based solely on the allegedly defamatory statements by Plaintiff to her
supervisors.
The Court will review the renewed motion and the redrafted proposed counterclaim under
Federal Rule of Civil Procedure 15(a), which provides that a party “may amend its pleading only
with the opposing party’s written consent or the court’s leave” and that “[t]he court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has
explained that “freely give” means that, in the absence of any apparent or declared reasons (e.g.,
undue delay, bad faith, dilatory motive), repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to an opposing party, or futility of the amendment, the court
should grant leave. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Bausch v. Stryker Corp., 630
F.3d 546, 562 (7th Cir. 2010). The standard for futility is the same standard of legal sufficiency that
applies under Federal Rule of Civil Procedure 12(b)(6). See Townsel v. DISH Network LLC, 668
F.3d 967, 969 (7th Cir. 2012); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074,
1085 (7th Cir. 1997). The decision whether to grant or deny a motion to amend lies within the sound
discretion of the district court. See Campbell v. Ingersoll Milling Mach. Co., 893 F.2d 925, 927 (7th
Cir. 1990).
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the Motion to Reconsider the Court’s
Ruling on the Defendants’ Motion for Leave to File Amended Answer to Complaint, Counter-Claim,

6

and Jury Demand [DE 21], and DENIES as moot the Motion for Leave to File Sur-Response [DE
26].
The Court REAFFIRMS the Opinion and Order [DE 20], but GRANTS Defendants leave
to file, on or before August 9, 2018, a renewed motion for leave to amend their answer to bring a
counterclaim against Plaintiff based on allegedly defamatory statements she made to Eric
Zimmerman and Michael Manuel.
SO ORDERED this 25th day of July, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

7