Dartez (ID 87393) v. Peters et al

Filing 297

MEMORANDUM AND ORDER. Follows oral order of 5/30/19 275 . Granting 191 MOTION to Amend Complaint filed by Samuel Lee Dartez, II; granting 255 MOTION to Enforce Subpoena filed by Samuel Lee Dartez, II. See order for additional details. Signed by Magistrate Judge Gwynne E. Birzer on 7/24/19. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAMUEL LEE DARTEZ, II,
Plaintiff,
v.
RICK PETERS, et al.,
Defendants.

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Case No. 15-3255-EFM-GEB

MEMORANDUM AND ORDER
On May 30, 2019, the Court convened an in-person motion hearing to address
Plaintiff’s Motion for Leave to Amend (ECF No. 191) and Plaintiff’s Motion to Enforce
Subpoena (ECF No. 255). Plaintiff appeared through counsel, David Seely and Brian
Vanorsby. Defendants Rick Peters, Robert Ware, Christopher Beas, Daniel W. Diloreto,
Brian S. Hedgecock, Christopher P. Mai, Colby J. Markham, David Ruble, Alex R. Taylor
and Jason S. Bailey appeared through counsel, Robert Turner, IV. Defendants Robert W.
Dierks, Mark French, and Brian Johnson appeared through counsel, David Cooper and
Briana Cowell. The Kansas Highway Patrol appeared through counsel, Tammie Lord.
After careful of review of the parties’ written briefs and attached exhibits (ECF Nos.
191, 216, 229, 230, 239, 240, 241, 255, 256, and 262), and hearing arguments of counsel,
the Court orally GRANTED both Motions during the hearing (see ECF No. 275). The
previously-announced ruling of the Court is now memorialized below.

I.

Background1
A.

Nature of the Case

This is a civil rights action where Plaintiff alleges law enforcement brutality. The
factual background has been explored in detail in earlier opinions2 and will not be
belabored here. Summarily, Plaintiff Samuel Dartez claims various Defendants, who are
members of the Kansas Highway Patrol (“KHP”) tactical team and the Riley County Police
Department (“RCPD”), either participated in, or were present when, members of the KHP
severely beat him during his arrest on November 13, 2014. Following the beating, Plaintiff
further claims members of the RCPD failed to obtain medical treatment for him; instead,
they drove him straight to the Riley County Jail for booking following his arrest.
B.

Procedural Posture

Plaintiff initially filed this matter on November 12, 2015, acting pro se. He sued
the State of Kansas, the KHP, the RCPD, and the Morris County Sheriff’s Department, as
well as a number of individual and “John Doe” law enforcement officers.

Early in the

case, the Court ordered Plaintiff to amend his complaint to name proper defendants and set
forth sufficient facts. (ECF No. 10, June 2, 2016.) Plaintiff did so, still acting pro se, and
removed the State and named agencies from the suit. (ECF No. 11, June 30, 2016.)

1

Unless otherwise indicated, the information recited in this section is taken from the Complaint
(ECF No. 1), Amended Complaint (ECF No. 11), and Second Amended Complaint (ECF No. 150),
and/or from the briefing surrounding the pending motions (ECF Nos. 191, 216, 229, 230, 239, 240,
241, 255, 256, and 262). This background information should not be construed as judicial findings
or factual determinations.
2
See, e.g., Memorandum and Orders, ECF Nos. 79, 81, and 149 (all filed by District Judge Eric F.
Melgren).
2

Pursuant to order by District Judge Eric F. Melgren, the Morris County Sheriff’s
Department and its deputies were later dismissed from the case, and Defendants Peters and
Ware were ordered to provide full names and service addresses of John Does 1-7. (Mem.
& Order, ECF No. 81, July 19, 2017.) After being appointed counsel (Order, ECF No. 92,
Aug. 11, 2017), Plaintiff was permitted to again amend his complaint, and filed his Second
Amended Complaint with the assistance of counsel on March 2, 2018. (Order, ECF No.
149; 2nd Am. Compl., ECF No. 150).
After resolution of multiple dispositive motions, an appeal unrelated to the current
issues,3 and a short stay related to one Defendant’s military service,4 the undersigned
entered a Scheduling Order (ECF No. 180) on September 27, 2018, initially setting a
discovery deadline of June 1, 2019 and a deadline to file any motions to amend the
pleadings by November 30, 2018. Plaintiff filed his current Motion to File a Third
Amended Complaint on the deadline of November 30, 2018. (Motion, ECF No. 191.)
Because a settlement conference was set in late February 2019, the Court postponed
consideration of the motion. After the settlement conference was unsuccessful, the parties
sought and received modifications to the schedule on April 19, 2019 (ECF No. 264).

3

On July 19, 2017, Judge Melgren ordered Defendants Peters and Ware to submit to the Court and
to plaintiff full names and service addresses of previously-named John Doe defendants 1-7
“allegedly involved” in Plaintiff’s arrest. (Mem. & Order, ECF No. 81; see also Order on Motion
to Clarify, ECF No. 87.). Judge Melgren also ordered defense counsel Gregory Goheen and Robert
Turner to show cause, within 14 days of this Order, why extensions of time were not filed for an
improper purpose. (ECF No. 81.) During a show cause hearing on September 5, 2017, Judge
Melgren did not find counsel’s written responses identifying the John Doe defendants satisfactory,
and imposed sanctions. (ECF Nos. 106, 151.) Counsel appealed the sanctions order (ECF No.
165), and the Tenth Circuit Court of Appeals eventually vacated the sanctions order and remanded
the issue for further proceedings. (ECF No. 228.)
4
See Order, ECF No. 169.
3

Pursuant to those changes, the discovery deadline was reset to September 20, 2019, among
other modifications. Following the May 30 hearing and oral ruling on the pending motions,
the undersigned held a status conference on July 9, 2019, during which the discovery
deadline was extended to December 20, 2019. With this background in mind, the Court
turns to Plaintiff’s Motion.
II.

Plaintiff’s Motion for Leave to Amend (ECF No. 191)
Although Plaintiff filed a single motion, because there are two pools of defendants

(the KHP defendants and the RCPD defendants), two sets of Responses and Replies were
filed. As previously noted, the briefing considered by the Court includes ECF Nos. 191,
216, 239, and 241 (Plaintiff’s motion and supporting briefs); ECF No. 229 (KHP
Defendants Bailey, Beas, DiLoreto, Hedgecock, Mai, Markham, Peters, Ruble, Taylor and
Ware’s Response in Opposition); and ECF No. 230 (RCPD Defendants Dierks, French,
and Johnson’s Response in Opposition). Prior to the May 30 hearing, the Court thoroughly
reviewed the parties’ briefing, and the parties’ positions are summarized here.
A.

Parties’ Arguments
1.

Plaintiff’s Position

Plaintiff seeks to amend his Complaint for the second time to add six new defendants
and achieve three primary goals:
a) Plaintiff asks to “clarify” his claims related to the KHP’s failure to
train its Special Response Team (“SRT”), and to add the proper defendants related to the
claim, including existing defendant KHP Captain Rick Peters, and four proposed new
defendants:

Mark Bruce (Superintendent of KHP), Jason Devore (West Region KHP
4

Commander), Robert Keener (KHP Captain overseeing the SRT), and Christopher
Bowling (KHP Lieutenant and SRT member).
b) Plaintiff seeks to add a previously-undisclosed KHP SRT member
who was involved in his arrest, Trooper Perry Frey.
c) Plaintiff seeks to add a RCPD officer, Detective Joseph Ehrlich,
who drove Plaintiff from the scene of his arrest to the Riley County Jail.
Each objective of Plaintiff’s motion is addressed in turn.
a.

Failure to Train

In Plaintiff’s First Amended Complaint (ECF No. 11) and Second Amended
Complaint (ECF No. 150), he does not delineate “failure to train” as a specific separate
count or claim. But in both pleadings, he requests as relief an injunction requiring the KHP
officers to undergo proper training regarding use of force and to be suspended until they
complete such training. (See 1st Am. Compl., ECF No. 11 at 5; 2nd Am. Compl., ECF No.
150 at 9.)
Although all parties agree the statute of limitations on Plaintiff’s original claims has
expired,5 Plaintiff contends the addition of this request as a formal claim, and the addition
of the KHP officers who would be responsible for such training, should relate back to the
date of the original Complaint under Fed. R. Civ. P. 15(c)(1)(B). And, because Defendant

Plaintiff’s arrest occurred on November 13, 2014. Under K.S.A. § 60-513, the limitations period
expires after two years. See Bell v. City of Topeka, KS, 279 F. App'x 689, 691 (10th Cir. 2008)
(noting Kansas's two-year personal-injury statute of limitations under Kan. Stat. Ann. § 60–
513(a)(4) applies to a 42 U.S.C. § 1983 claim). The statute of limitations on Plaintiff’s claims ran
on November 13, 2016, absent any reason for tolling or extending the limitations period. (Mem.
& Order, ECF No. 149 at 8.)
5

5

Peters has been named in the case since its original filing, Plaintiff argues Peters has been
given fair notice of the claims and it arises out of the same conduct, transaction or
occurrence so the claim again him should relate back under Rule 15(c)(1)(B).
Finally, Plaintiff contends the addition of the newly-proposed KHP defendants
(Bruce, Devore, Keener, and Bowling) should relate back under Rule 15(c)(1)(C), because
they were all provided adequate notice and regular updates on the status of the case. Bruce
and Bowling received regular updates, according to the KHP’s privilege log (ECF No. 2168, Ex. 8), as early as October 6, 2016. Keener and Devore were deposed in this case (ECF
No. 239, Ex. C), and testified they received email updates about the lawsuit. Citing the D.
Kan. case of Coleman v. Apple Eight Hosp. Mgmt., Inc.,6 Plaintiff argues there is no
evidence he made a deliberate choice or tactical decision to sue Peters and not Bruce,
Devore, Keener, and Bowling. Instead, he contends their prior omission from this case was
due to a misunderstanding of the KHP’s operational structure. (Reply, ECF No. 239 at 23.)
By illustration, Plaintiff sought production of the Kansas Bureau of Investigation’s
file regarding his arrest, first while acting pro se in November 2015, and—having never
received it—later through counsel by subpoena in early 2018. His counsel eventually
received a copy of the voluminous KBI file in June 2018. (See Pl.’s Mem., ECF No. 216
at 5.) Plaintiff argues it was only through careful review of the massive KBI investigation
file by counsel that he was able to determine Bruce, Keener, Devore, and Bowling shared

6

No. 16-1343-JTM, 2017 WL 1836974, at *1 (D. Kan. May 8, 2017) (granting the plaintiff's
motion to amend, noting that True North, the proposed added party, should have known that, “but
for the plaintiff's mistake or misunderstanding” regarding the proper party who owned and
operated the hotel, the action would have also been asserted against it.)
6

the training and oversight responsibilities for the SRT. Plaintiff contends all four proposed
defendants knew or should have known they would have been named, but for Plaintiff’s
misunderstanding.
Plaintiff also argues Bruce, Bowling, Devore, and Keener received sufficient notice
of Plaintiff’s action well within the statute of limitations and Fed. R. Civ. P. 4(m) service
period. He claims their addition is not “severely prejudicial,” because Bruce, Bowling,
Devore, and Keener are represented by the same counsel as the other KHP Defendants,
who have participated in this matter since the beginning. Discovery is not currently
scheduled to close until December 20, 2019, and this case is not yet set for trial. Therefore,
Plaintiff believes the additional defendants will not be prejudiced by defending this claim
on the merits.
b.

Addition of KHP Trooper Perry Frey

Plaintiff seeks to add another KHP officer present at the scene of his arrest. Through
documents and video interviews obtained from the KBI, Plaintiff discovered Perry Frey
participated in his arrest. Plaintiff learned Frey was the “lead shield in the passenger side
‘stack’ that assaulted [his] vehicle and provided the handcuffs that were used to restrain”
him during his arrest. (ECF No. 216 at 11.) Moreover, Trooper Frey “stood mere feet
away” during Plaintiff’s alleged beating and failed to intervene. (Id.)
Plaintiff argues the addition of Perry Frey as Defendant is not futile because it relates
back under Rule 15(c)(1)(C), and Defendants offer no support for their one-sentence
argument that his addition does not relate back. During his deposition, Frey testified he
had notice of the claims and received email updates; therefore, Frey had notice and would
7

not be prejudiced. Even if Plaintiff’s claims against Frey did not relate back, Plaintiff
contends the claims are subject to equitable tolling on the same basis on which Judge
Melgren permitted the naming of the other KHP “John Doe” defendants. (See Mem. &
Order, ECF No. 149.) Plaintiff further argues the KHP Defendants should be equitably
estopped from relying on the statute of limitations defense, because they had an obligation
to identify Frey when directed to do so by Judge Melgren, and misled Plaintiff to believe
Frey was not one of the officers present during Plaintiff’s arrest. It was only through review
of the extensive KBI investigative file that Plaintiff’s counsel determined Frey was present.
For these reasons, Plaintiff seeks to amend his Complaint to add KHP Trooper Frey.
c.

Addition of RCPD Detective Joseph Ehrlich

Plaintiff asserted claims against RCPD officers Robert Dierks, Brian Johnson, and
Mark French for failure to provide him with adequate medical care following his arrest and
instead taking him straight to jail. He did not name RCPD Detective Joseph Ehrlich in any
prior complaint.
Plaintiff’s counsel contends by the time he received discovery documents from the
RCPD in September 2017, he was newly-appointed and was focused on Judge Melgren’s
order related to naming the KHP “John Does,” as well as two pending dispositive motions.
He argues Ehrlich’s omission from the Second Amended Complaint, filed specifically to
comply with Judge Melgren’s order to name the John Doe KHP officers, was an inadvertent
omission. It was not until counsel’s review of the KBI file that he realized Ehrlich should
have been included.

8

Plaintiff maintains Rule 15(c)(1)(B) is satisfied because the claim against Ehrlich
“arises under” the same transaction or occurrence as the original pleadings. He further
claims Rule 15(c)(1)(C) permits the addition, because Ehrlich was made aware of the filing
of this lawsuit, and knew or should have known that but for his inadvertent omission, he
would have been named in this action along with his fellow RCPD officers who were on
scene.
Even if the claim did not relate back under Rule 15(c)(1)(B) and (C), Plaintiff claims
the claim is timely under the “unique circumstances” doctrine and equitable tolling.
Plaintiff also argues his delay in naming Ehrlich does not equate to “undue delay”, for
substantially the same reasons as those supporting relation back.

He has adequate

explanation for the delay, and it was counsel’s inadvertence and oversight that led to the
delay in attempting to add Ehrlich to the case. Finally, Plaintiff contends Defendants can
point to no prejudice by including Ehrlich.
2.

KHP Defendants’ Position

In response to Plaintiff’s motion, the KHP defendants focus on the alleged futility
of Plaintiff’s proposed failure-to-train claim, the related defendants, and Trooper Frey.
a.

Failure-to-Train Claim and Related Defendants

The KHP Defendants argue this is a new claim, with new defendants, which does
not relate back and is therefore futile because it is subject to dismissal on the statute of
limitations. They contend the training issue was only included as a requested relief and
was only directed to the SRT officers on the scene of Plaintiff’s arrest. Plaintiff’s proposed
amendment would bring in administrative officers who were not on the scene, and the KHP
9

Defendants argue Bruce, Devore, Keener, and Bowling lacked any notice of the proposed
claim against them and, essentially, Plaintiff made a deliberate choice—not a mistake—in
not suing them.
The KHP Defendants also insist the failure-to-train claim, even if it does relate back,
is not sufficiently plead. Defendants maintain the proposed claim is subject to dismissal
because it does not include allegations of the specific policy or training which Plaintiff
claims to be improper or inadequate. And, they contend the proposed addition of Devore,
Keener, Bowling, and Bruce is futile because those defendants would be entitled to
qualified immunity.
b.

Addition of Trooper Perry Frey

The KHP Defendants argue the addition of Frey is futile, because his addition does
not relate back to the earlier Complaint. They claim Frey was not one of the “John Doe”
Defendants which Judge Melgren ordered them to identify.7

7

See discussion supra note 3. On July 19, 2017, Judge Melgren ordered Defendants Peters and
Ware to submit to the Court and to plaintiff full names and service addresses of previously-named
John Doe defendants, 1-7 “allegedly involved” in Plaintiff’s arrest. (Mem. & Order, ECF No. 81.)
In his later order of clarification, he specifies Defendants must identify “all KHP officers who
‘responded to the area’ and thus were present during” Plaintiff’s arrest, “without regard at this time
to whether or not defendants allege that some of such officers were not ‘personally involved in
subduing or arresting Plaintiff.’” (ECF No. 87 at 2.) Prior to the September 5, 2017 hearing,
Defendants produced a list of 34 names—rather than the 7-8 anticipated by the Court—and Judge
Melgren found this production to be clearly evasive of the Court’s order to identify the specific
officers present. (ECF No. 106 at 2.) Apparently, some confusion persists between the parties
regarding specifically which officers were required to be named. Although Defendants point to the
September 5, 2017 hearing transcript which suggests they were ordered to disclose only those
officers involved in actually extracting Plaintiff from his vehicle (ECF No. 108), Judge Melgren’s
earlier written order (ECF No. 87) clearly specifies he intended Defendants to identify those
officers present at the arrest. (emphasis added.)
10

The KHP Defendants also contend Plaintiff’s proposed Third Amended Complaint
fails to state a claim against Frey because the face of the pleading does not exhibit any
allegations regarding Frey’s personal participation in Plaintiff’s arrest. (ECF No. 229 at
29). For the most part, the KHP Defendants focus solely on futility, and spend little time
discussing prejudice to Frey by his addition to the case.
3.

RCPD Defendants’ Position

The RCPD Defendants contend the statute of limitations prohibits Ehrlich’s addition
to the case. Plaintiff’s counsel in his earlier criminal action sought discovery for that case,
and Defendants argue Plaintiff possessed the same discovery and used it to support the
First and Second Amended Complaints. Defendants claim that discovery identified Ehrlich
and described his involvement. Although Plaintiff had the information, he failed to seek
Ehrlich’s addition prior to the expiration of the statute of limitations; therefore they contend
Plaintiff’s failure to name Ehrlich was not a mistake, and because there was no mistake,
there can be no relation back. The RCPD Defendants rely on the information available to
Plaintiff and his counsel in the underlying criminal case, as well as early discovery in this
case.
The RCPD Defendants also argue the unique circumstances doctrine does not apply,
because there was no non-party error, and Plaintiff should have known about Ehrlich’s
involvement at the time of filing his First Amended Complaint. Defendants also contend
the circumstances giving rise to the application of equitable tolling to the statute of
limitation for plaintiff’s Second Amended Complaint are not applicable to his proposed
amendment to add Ehrlich. Unlike the KHP defendants, who did not identify the John Doe
11

officers as ordered, Plaintiff had documents identifying Ehrlich, and his identity was never
concealed. Because Plaintiff should have known about Ehrlich, Defendants argue his
omission was not inadvertent.
B.

Legal Standards

A brief review of the legal standards underlying the parties’ arguments is necessary
in considering Plaintiff’s motion.
1.

Amendment Generally

The Fed. R. Civ. P. 15 standard for permitting a party to amend his or her complaint
is well-established. A party may amend its pleading as a matter of course under Fed. R.
Civ. P. 15(a)(1), either before the responding party answers or within 21 days after service
of a responsive pleading. However, in cases such as this, where the time to amend as a
matter of course has passed, without the opposing party’s consent a party may amend its
pleading only by leave of the court under Rule 15(a)(2).
Rule 15(a)(2) provides leave “shall be freely given when justice so requires,” and
the decision to allow an amendment is within the sound discretion of the court.8 The court
considers a number of factors in deciding whether to allow an amendment, including
timeliness, prejudice to the other party, bad faith, and futility of amendment.9 In exercising

8

See J. Vangel Elec., Inc. v. Sugar Creek Packing Co., No. 11–2112–EFM, 2012 WL 5995283, at
*2 (D. Kan. Nov. 30, 2012) (citing Panis v. Mission Hills Bank, 60 F.3d 1486, 1494 (10th Cir.
1995)).
9
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)); see also Monge v. St. Francis Health Ctr., Inc., No. 12–2269–EFM-JPO,
2013 WL 328957, at *2 (D. Kan. Jan. 10, 2013), report and recommendation adopted, 2013 WL
328986 (D. Kan. Jan. 29, 2013).
12

its discretion, the court must be “mindful of the spirit of the federal rules of civil procedure
to encourage decisions on the merits rather than on mere technicalities.” 10 The Tenth
Circuit acknowledged Rule 15 is intended “to provide litigants ‘the maximum opportunity
for each claim to be decided on its merits rather than on procedural niceties,’”11 especially
in the absence of bad faith by an offending party or prejudice to a non-moving party.12
2.

Futility of Amendment

The party opposing amendment bears the burden of establishing its futility.13 “A
proposed amendment is futile if the complaint, as amended, would be subject to
dismissal.”14 The proposed pleading is then analyzed using the same standard as a motion
to dismiss under Fed. R. Civ. P. 12(b)(6). When utilizing this standard, “the court must
accept as true all well-pleaded factual allegations and view them in the light most favorable
to the pleading party.”15 Only if the court finds “the proposed claims do not contain enough

10

Hinkle v. Mid-Continent Cas. Co., No. 11–2652–JTM-KMH, 2012 WL 2581000, at *1 (D. Kan.
July 3, 2012) (citing Koch v. Koch Indus., 127 F.R.D. 206, 209 (D. Kan. 1989)).
11
Carefusion 213, LLC v. Professional Disposables, Inc., No. 09–2616–KHV–DJW, 2010 WL
4004874, at *4 (D. Kan. Oct. 12, 2010) (citing Minter, 451 F.3d at 1204) (quoting Hardin v.
Manitowoc–Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
12
See AK Steel Corp. v. PAC Operating Ltd. P'ship, No. 15-9260-CM-GEB, 2016 WL 6163832,
at *4 (D. Kan. Oct. 24, 2016) (collecting cases; internal citations omitted).
13
Neonatal Prod. Grp., Inc. v. Shields, No. 13-2601-DDC-KGS, 2015 WL 1957782, at *2 (citing
Boykin v. CFS Enter., Inc., No. 08–2249–CM–GLR, 2008 WL 4534400, at *1 (D. Kan. Oct. 6,
2008)).
14
Farmers Bank & Trust, N.A. v. Witthuhn, No. 11-2011-JAR, 2011 WL 5920941, at *2 (D. Kan.
Nov. 28, 2011) (citing Jefferson Cnty. Sch. Dist. No. R–1 v. Moody's Investors's Servs., Inc., 175
F.3d 848, 859 (10th Cir. 1999)); see also Neonatal Prod. Grp., 2015 WL 1957782, at *2 (internal
citations omitted).
15
Carefusion 213, 2010 WL 4004874, at *5 (citing Anderson v. Suiters, 499 F.3d 1228, 1238 (10th
Cir. 2007) (internal citations omitted)).
13

facts to state a claim for relief that are plausible on their face or the claims otherwise fail
as a matter of law”16 should the court find the amendment futile.
3.

Relation Back

Because Plaintiff seeks to amend his complaint after the statute of limitations has
run,17 the proposed amendment is futile unless it relates back to the original complaint.
Under Fed. R. Civ. P. 15(c)(1)(B), an amendment may relate back to the date of the original
pleading if certain condition are met. An amendment to a pleading relates back to the date
of the original pleading when the following scenarios, applicable to this case, apply:
...
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original
pleading; or
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within
the period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.18

16

Id. (citing Raytheon Aircraft Co. v. U.S., 501 F. Supp. 2d 1323, 1327 (D. Kan. 2007); see also
Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007))).
17
See discussion supra note 5.
18
Lopez-Aguirre v. Bd. of Cty. Comm'rs, No. 12-2752-JWL-KGG, 2013 WL 5467073, at *1–2 (D.
Kan. Sept. 30, 2013) (citing Fed. R. Civ. P. 15(c)(1)).
14

Fed. R. Civ. P. 15(c)(1). The purpose of the relation back doctrine is to balance the
defendants’ interest in statute of limitations protections with the federal rules' general
preference to resolve disputes on their merits.19
Rule 15(c)(1) is intended to give the defendant “fair notice that the litigation is
arising out of a specific factual situation.”20 An amended pleading does not relate back to
a previous pleading unless the earlier pleading fairly gave the defendant notice of the laterasserted claim.21 “When an amendment is based on different facts, transactions, and
occurrences, a claim in an amended pleading will not relate back.”22
Section 15(c)(1)(B) addresses amendment of a claim or defense. When deciding
whether a proposed amend claim relates back under Fed. R. Civ. P. 15(c)(1)(B), the court
gives broad construction to the set of claims that “arise” out of the conduct, transaction, or
occurrence set out – or attempted to be set out – in the original pleading.23
Section 15(c)(1)(C) addresses relation back when the amendment changes the party
or the naming of the party against whom a claim is asserted. And, the “arising under”
provisions of Rule 15(c)(1)(B) must still be satisfied.

19

Donahue v. Kansas Bd. of Educ., No. 18-2012, 2018 WL 3055841, at *5 (D. Kan. June 20,
2018), motion to certify appeal denied, No. 18-2012, 2018 WL 5283877 (D. Kan. Aug. 1, 2018),
reconsideration denied, No. 18-2012, 2018 WL 5281555 (D. Kan. Oct. 24, 2018), and aff'd, No.
18-3130, 2019 WL 2359370 (10th Cir. June 4, 2019) (citing Krupski v. Costa Crociere S.p.A., 560
U.S. 538, 550 (2010).
20
Price, 2013 WL 3388905, at *4 (citing Reed v. Entercom Commc'ns Corp., No. 04–2603–CM,
2006 WL 1174023, at *1 (D. Kan. Apr.28, 2006)).
21
Id.
22
Id.
23
See Anderson v. PAR Elec. Contractors, Inc., 318 F.R.D. 640, 645 (D. Kan. 2017) (“Much as
the Tenth Circuit gave ‘broad construction’ to the ‘arising under’ phrase in [Williams v. Imhoff,
203 F. 3d 758 (10th Cir. 2000)], this Court is obliged to ‘freely give leave [to amend] as justice so
requires.’”).
15

The change or addition of a party should be permitted if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to be brought in by
amendment: (i) received such notice of the action that it will not be prejudiced in defending
on the merits; and (ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.”24 The focus here is on
“what the prospective defendant knew or should have known during the Rule 4(m) period,
not what the plaintiff knew or should have known at the time of [the] original complaint.”25
What the plaintiff knows or should have known is only relevant “if it shows “a deliberate
choice to sue one party instead of another while fully understanding the factual and legal
differences between the two parties.”26
4.

Equitable Tolling and Unique Circumstances

The parties discuss both the doctrines of equitable tolling and unique circumstances
as alternatives to permitting or denying amendment on the basis of relation back. Both
doctrines were discussed in detail by Judge Melgren in his earlier order allowing Plaintiff
to file the Second Amended Complaint. (Mem. & Order, ECF No. 149). Because the
Court does not rely heavily on either doctrine in its analysis, these doctrines are
summarized as follows:

24

Burns v. Transdigm Grp., Inc., No. 13-1371-RDR, 2015 WL 2062925, at *6 (D. Kan. May 4,
2015) (citing Fed. R. Civ. P. 15(c)(1)(C)).
25
Krupski, 560 U.S. at 548 (emphasis added).
26
Krupski, 560 U.S. at 549 (emphasis added).
16

a.

Equitable tolling. Although statutory tolling does not apply

in this case,27 Judge Melgren previously applied equitable tolling to overcome Defendants’
futility arguments and permit Plaintiff to file his Second Amended Complaint without
running afoul of the statute of limitations. (ECF No. 149 at 15-18.) “Equitable tolling
applies when a person has been pursuing his rights diligently and some “extraordinary
circumstance” prevented the timely filing.”28 Due to the length of time the Court took to
screen Plaintiff’s pro se Complaint, along with the KHP Defendants’ delay in identifying
the John Doe Defendants, the Court found it equitable to toll the limitations period.
b.

Unique circumstances. “The unique circumstances doctrine

considers the non-party error, whether the party’s conduct affected the non-party error, and
whether the party reasonably relied upon the non-party’s action.”29 In his March 2, 2018
order, Judge Melgren found—due to the length of time it took the Court to screen Plaintiff’s
initial complaint, then the Court gave Defendants multiple extensions of time to respond
to the pleadings and discovery; then stayed proceedings pending resolution of dispositive
motions—there were “569 days for which Plaintiff was waiting on a non-party to perform
an action in this case and it was not due to Plaintiff’s lack of diligence.” (ECF No. 149 at
15.) Judge Melgren found “under the unique circumstances of this case, the statute of
See ECF No. 149 at 9 (noting, “In this case, Plaintiff does not attempt to toll the limitations
period statutorily because there is no basis to do so.”)
28
ECF No. 149 at 9 (citing McClain v. Roberts, 2013 WL 3970215, at *3 (Kan. Ct. App. 2013)
(citing McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)); Sellers, 2015 WL 1262895, at *3, n. 3
(citing Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1231-32 (2014)).
29
Id. (citing Mangus, 260 P.3d at 1218 (finding that plaintiff’s cause of action was not barred by
the statute of limitations because the plaintiff’s counsel did not make any misrepresentations to the
court in asking for an extension of time for service and then relied upon the district court’s order
extension)).
27

17

limitations was tolled and has not yet expired,” so Plaintiff could proceed to name the “John
Doe” KHP defendants. (Id.)
With the arguments of the parties and the above standards in mind, the Court
evaluates Plaintiff’s motion.
C.

Discussion

As outlined above, to determine whether amendment is proper, the Court considers
the following factors: timeliness, prejudice to the other party, bad faith, and futility of
amendment.30 Plaintiff’s motion was timely filed. Despite it being filed more than three
years after the filing of the initial Complaint, it was filed on the deadline established in the
most recent Scheduling Order. Therefore, there is no dispute regarding its timeliness, from
a deadline perspective. In fact, the parties present no timeliness arguments regarding undue
delay; but rather only timeliness as it relates to the statutes of limitations. Neither set of
defendants claim to suffer any prejudice from amendment, aside from within their relationback arguments, and no defendants make allegations of bad faith. Therefore, the Court’s
analysis is narrowed to the potential futility of all proposed amendments. The futility of
each proposed claim and/or newly-named defendant is addressed in turn.
1.

Failure-to-train Claim and Addition of Related Officers

Although Plaintiff did not mention the KHP’s failure to train officers in his initial
Complaint, he did include it as a relief sought in his First Amended Complaint. Both
pleadings were filed pro se, so the Court provides him some leniency. After counsel was

30

See Minter, 451 F.3d at 1204.
18

appointed, counsel was directed to amend to identify the John Doe defendants,31 and—
specifically following those instructions—counsel filed the Second Amended
Complaint. These facts weigh in favor of permitting the addition of the failure-to-train
claim.
Additionally, upon receiving both the First and Second Amended Complaints,
Defendants were certainly aware a potential form of relief would be an injunction requiring
the KHP tactical (SRT) team to engage in additional training. Even with Plaintiff’s
proposed addition of the failure-to-train claim, Plaintiff’s requested forms of relief remain
identical to his earlier pleadings.
The primary argument against permitting the new claim is its purported futility,
based on the expiration of the limitations period and whether the claim relates back. When
reviewing whether a proposed amendment relates back to the original complaint under
Rule 15, the Tenth Circuit has found the phrase “arising out of” “must be broadly construed
to mean ‘originating from,’ ‘growing out of,’ or ‘flowing from.’”32 In one case cited by the
Circuit, the court explained “arising out of” simply “broadly links a factual situation with
the event creating liability, and connotes only a minimal causal connection or incidental
relationship.”33 In a District of Kansas opinion, the court analyzed whether the scope and
nature of the case was “radically altered” by the addition of the new claims.34

31

See discussions supra notes 3 and 7.
Williams v. Imhoff, 203 F.3d 758, 765 (10th Cir. 2000).
33
Id. (citing Acceptance Ins. Co. v. Syufy Enterprises, 69 Cal. App. 4th 321 (1999)). See also
Anderson v. PAR Elec. Contractors, Inc., 318 F.R.D. 640, 644 (D. Kan. 2017).
34
Anderson, 318 F.R.D. at 64 (citing Acker v. Burlington N. & Santa Fe R. Co., 215 F.R.D. 645,
651 (D. Kan. 2003)).
32

19

Under the facts presented, the Court finds the failure-to-train claim relates back to
Plaintiff’s First Amended Complaint, filed prior to expiration of the statute of limitations,
under Rule 15(c)(1)(B). The inclusion of the failure-to-train relief in the First Amended
(and Second Amended) Complaint implies, by its very nature, if the KHP SRT team needed
additional training, they were not previously properly trained. Plaintiff’s claims, then, are
not “radically altered” by the addition of this claim. Rather, this claim is broadly linked to
the earlier Amended Complaint.
Regarding the proposed addition of defendants related to the failure-to-train claim,
the Court first examines Defendant Peters. Peters has been named in the case since its
original filing, and the Court finds he was aware, since the filing of the Amended
Complaint, the training of the KHP SRT officers was an issue in the case. In fact, a part of
Peters’ early motion to dismiss the First Amended Complaint was based, in part, on his
inability to effectuate the training piece of Plaintiff’s requested relief. (See Defs.’ Mem.,
ECF No. 42 at 8.) The Court finds Peters has been given fair notice of the proposed claim.
And, finding the claim arises out of the same conduct, transaction or occurrence, the
failure-to-train claim against Defendant Peters relates back under Rule 15(c)(1)(B).
Furthermore, the addition of proposed Defendants Bruce, Devore, Keener, and
Bowling is proper under Rule 15(c)(1)(C). Both Bowling and Devore were present at the
scene of Plaintiff’s arrest—Bowling as the tactical commander and Devore as the highestranking officer on scene. (ECF Nos. 191-1 and 276 at ¶¶ 13, 15.) Bruce and Bowling
received regular updates, according to the KHP’s privilege log, as early as October 6,
2016. (ECF No. 216-8, Ex. 8.) Keener and Devore were deposed in this case (ECF No.
20

239, Ex. C), and testified they received email updates of the lawsuit. The Court finds each
had adequate notice.
Moreover, these four parties will not be prejudiced under Rule 15(c)(1)(C)(i) by
their addition to the suit. Although the KHP Defendants contend addition of the claim and
new defendants will entail additional discovery and potential motion practice, the Court
finds this to be practical prejudice, not undue prejudice barring the relation back of the
amendment. As argued by counsel at hearing—and borne out by the recent filings in this
case—the newly-named defendants share the same counsel as the remainder of the KHP
Defendants. At least two of the men have already been deposed, and with a discovery
deadline still six months away, there is adequate time for any additional discovery.
Finally, there is no evidence Plaintiff made a deliberate choice or tactical decision
to sue Peters and not Bruce, Devore, Keener, and Bowling. Instead, the Court finds their
omission from this case was due to Plaintiff’s misunderstanding of the KHP’s operational
structure. As previously discussed, it was only through Plaintiff’s review of the KBI
investigation file that Plaintiff was able to determine Bruce, Keener, Devore, and Bowling
shared the training and oversight responsibilities for the SRT. The focus under Rule
15(b)(1)(C)(ii) is on what the four proposed defendants knew or should have known.35
Given their prior knowledge and participation in the case, the Court finds they knew or
should have known they would have been named, but for Plaintiff’s misunderstanding.

35

Krupski, 560 U.S. at 548.
21

Therefore, the Court finds the addition of Bruce, Devor, Kenner and Bowling relates back
under Rule 15(c)(1)(C).
Regarding the KHP Defendants’ argument the failure-to-hire claim and the specific
claims against Bruce, Devore, Keener, and Bowling are insufficiently plead, the Court
finds the argument unconvincing. This is not a situation where the Court is forced to
examine an altogether novel claim in a recently-filed action, with no additional context
with which to view the proposed pleadings. This case is more than three years old, with
numerous filings and prior pleadings. In his March 2, 2018 Order, Judge Melgren noted
although Plaintiff may not have presented as thorough factual allegations as Defendants
would like (in that instance, to support tolling), the “facts are in front of the Court and the
Court can determine from the briefing and the previous pleadings and briefing in this case”
whether tolling applied. (ECF No. 149 at 18 n. 44.) And, the KHP defendants previously
argued the amended complaint failed to state a claim against other defendants on similar
bases, but Judge Melgren overruled their argument. (See ECF No. 81 at 23-26.) This Court
applies similar reasoning here. Assuming the facts alleged in the complaint are true, and
taking the facts in the light most favorable to Plaintiff (as the Court would in a 12(b)(6)
motion), Plaintiff’s request to amend is not denied on the basis of the sufficiency of the
allegations.
The KHP Defendants also argue Plaintiff’s claims against Bruce, Devore, Keener,
and Bowling would ultimately fail at the summary judgment stage based upon qualified
immunity. (ECF No. 229 at 21, emphasis added.) But this argument is unpersuasive,
because Defendants simply apply the wrong standard. The standard for futility of a
22

proposed amendment is the Fed. R. Civ. P. 12(b)(6) standard for dismissal—whether
Plaintiff has stated a plausible claim—not what could happen later in a Rule 56 summary
judgment motion. Plaintiff has stated a plausible claim, and the Court is required to view
the allegations in the light most favorable to Plaintiff at this stage.
For the reasons stated herein, exercising its discretion, and recognizing Defendants
will have an opportunity to challenge the sufficiency of the failure-to-train claim through
a later dispositive motion, the Court will not deny Plaintiff’s proposed amendment based
on futility. Permitting the filing of the proposed amendment “comports with the liberal
amendment policy of Fed. R. Civ. P. 15(a)” to address a case on its merits, where
Defendants may later challenge the claim and particularly in light of the lack of prejudice
to Defendants discussed below.36
Although both sides thoroughly address the issue of futility in their briefs, the other
factors weighed by the Court were not so thoroughly addressed. As the party opposing the
amendment, the KHP Defendants bear the burden to demonstrate undue prejudice within
the meaning of Rule 15. Under Rule 15, “undue prejudice” means “undue difficulty in
prosecuting or defending a lawsuit as a result of a change of tactics or theories on the part

36

Brez v. Fougera Pharm. Inc., No. 16-2576-DDC-GEB, 2017 WL 3267610, at *6 (D. Kan. Aug.
1, 2017) (quoting Quality Time, Inc. v. W. Bend Mut. Ins. Co., 12-1008-JTM-GLR, 2012 WL
2872226, at *2 (D. Kan. July 12, 2012)).
23

of the movant.”37 While any amendment invariably causes some “practical prejudice,”
undue prejudice means the amendment “would work an injustice to the defendants.”38
As discussed above regarding the relation back of the amendment, the Court finds
the KHP Defendants failed to demonstrate prejudice sufficient to prohibit the proposed
amendment. Although this case has been on file for a considerable amount of time,
discovery does not close for several months. Much of the discovery appears complete, and
the current schedule will permit any additional discovery necessary because of the
amendment. Therefore, the Court struggles to discern any true injustice which would occur
from adding the failure-to-hire claim and the related parties.
As set forth above, the Court GRANTS Plaintiff’s motion to amend to add the
failure-to-train claim, and the related defendants: current Defendant Rick Peters, and
Colonel Mark Bruce, Major Jason Devore, Lieutenant Christopher Bowling, and Captain
Robert Keener.
2.

Addition of KHP Trooper Frey

After analysis of this proposed amendment, the Court finds the addition of KHP
Trooper Frey relates back under Rule 15(c)(1)(B) and (C). As discussed previously, the
failure-to-train claim arises out of the conduct and occurrence set out in the original
pleadings, satisfying Rule 15(c)(1)(B).

And, the Court finds Rule 15(c)(1)(C) also

satisfied. Although the KHP Defendants emphasize when Plaintiff should have known

37

Carefusion 213, 2010 WL 4004874, at *4 (citing U.S. v. Sturdevant, No. 07–2233–KHV–DJW,
2008 WL 4198598, at *3 (D. Kan. Sept. 11, 2008) (citing Minter, 451 F.3d at 1208; Jones v.
Wildgen, 349 F. Supp. 2d 1358, 1361 (D. Kan. 2004))).
38
Id. (citing Sturdevant, 2008 WL 4198598, at *3) (other internal citations omitted).
24

about Frey’s involvement in his arrest, this is the incorrect focus. The Court must analyze
when Frey “knew or should have known.” Rule 15(c)(1)(C) amendments depend on “what
the prospective defendant knew or should have known during the Rule 4(m) period, not
what the plaintiff knew or should have known at the time of filing [his] original
complaint.”39
Frey testified he received notice from KHP’s legal counsel when Plaintiff tried to
sue the State of Kansas and the KHP in his initial Complaint, and again was aware when
Plaintiff added Peters and Ware to the lawsuit. (ECF No. 239 at 5, Ex. 1, Frey Dep. 164:425.) He also testified he knew about fellow members of the KHP SRT who were sued. (Id.
at 166, 167.) Frey either knew, or should have known, he would have been named to the
lawsuit if Plaintiff “hadn't been mistaken about the proper parties to [an] action”40 making
relation back proper under Rule 15(c)(1)(C).
Even if relation back were improper, application of equitable tolling would allow
the amendment to overcome the statute of limitations. Frey was one of the KHP officers
present at Plaintiff’s arrest, and although Defendants argue he was named in their original
disclosure, that 34-name disclosure was found to be clearly insufficient and formed the
basis of Judge Melgren’s orders to counsel to specifically name the officers present. (See
Order, ECF No. 87; Order, ECF No. 106.) Judge Melgren explicitly ordered Defendants
to name “all KHP officers who ‘responded to the area’ and thus were present during the
incident involving Plaintiff referred to in the Amended Complaint” regardless of whether

39
40

Donahue, 2018 WL 3055841, at *5 (citing Krupski, 560 U.S. at 548) (emphasis added).
Id.
25

Defendants claimed the officer(s) were “personally involved in subduing or arresting
Plaintiff.” (EFM Order, ECF No. 87, August 2, 107, emphasis added.) Because Frey
should have been named at that time, this Court could apply the same principle of equitable
tolling applied by Judge Melgren in his Memorandum and Order allowing Plaintiff to name
the original “John Doe” KHP officers. (ECF No. 149.)
Although the Court tends to agree with the KHP Defendants that Plaintiff’s
proposed Third Amended Complaint is somewhat thin on supporting facts, as analyzed
above, this is not a situation where the Court or parties are examining a new claim in a
recently-filed action, with no additional information on the docket with which to view the
proposed pleadings. Because the Court has plenty of context in which to ascertain
Plaintiff’s claims, and is taxed with taking the facts in the light most favorable to Plaintiff41
(as the Court would in a 12(b)(6) motion), the Court will not deny amendment based on
insufficiency of the allegations.
Both sides thoroughly address the issue of futility in their briefs, but the other factors
weighed by the Court were, again, not so thoroughly addressed. The KHP Defendants
make no arguments regarding any prejudice to Frey from his addition to the case. Frey has
been deposed, he is likely to engage the same counsel, and has several months to complete
discovery. Given Defendants’ complete disregard of this “most important factor,”42 the

41

Potts v. Boeing Co., 162 F.R.D. 651, 653 (D. Kan. 1995).
Brez, 2017 WL 3267610, at *7 (quoting Minter, 451 F.3d at 1207 (noting, “The second, and
most important, factor in deciding a motion to amend the pleadings, is whether the amendment
would prejudice the nonmoving party.”).
42

26

Court finds Defendants wholly failed to demonstrate prejudice sufficient to prohibit the
proposed amendment.
Finding the Rule 15 factors weigh in favor of amendment, the Court GRANTS
Plaintiff’s request to file his Third Amended Complaint to add Trooper Perry Frey.
3.

Addition of RCPD Detective Ehrlich

Plaintiff’s final proposed amendment is the addition of Detective Joseph Ehrlich as
a defendant. Ehrlich actually drove Plaintiff from the scene of his arrest to the Riley
County Jail, but had not been previously included in the lawsuit. After analysis of the
proposed amendment, the Court finds the addition of Ehrlich relates back under Rule
15(c)(1)(B) and (C). Ehrlich’s addition is to the same previously-plead claim of the RCPD
officers’ deliberate indifference to Plaintiff’s medical needs, which satisfies the “arisingunder” requirement of Rule 15(c)(1)(B).
The Court also finds Rule 15(c)(1)(C) satisfied. Although the RCPD Defendants
emphasize when Plaintiff should have known about Ehrlich’s involvement, this is the
incorrect focus. Rule 15(c)(1)(C) amendments depend on “what the prospective defendant
knew or should have known during the Rule 4(m) period, not what the plaintiff knew or
should have known at the time of filing [his] original complaint.”43
It is likely Plaintiff possessed information about Ehrlich through his criminal
proceedings. But those proceedings occurred in 2015, and with entirely different counsel.
The narrative report from Ehrlich was not produced in discovery in this case until

43

Donahue, 2018 WL 3055841, at *5 (citing Krupski, 560 U.S. at 548) (emphasis added).
27

September 12, 2017—well after the limitations period expired.44 The RCPD Defendants
focus on this earlier production of information, but they do not even attempt to argue
Ehrlich did not receive notice of this lawsuit or he would be prejudiced in defending it.
Ehrlich was the only RCPD officer who was present and failed to take Plaintiff to
the hospital who was not named in this lawsuit. Ehrlich was deposed in this action and
testified his co-workers Defendants French, Johnson, and Dierks all informed him they had
been sued by Plaintiff, and French even told Ehrlich he was “fortunate” he hadn’t been
sued. (Pl.’s Reply, ECF No. 241, Ex. C, Ehrlich Dep. at 92-93, 99; Ex. D, French Dep. at
143.) Likewise, Defendant Johnson testified that, shortly after he was served with the
lawsuit, he talked to Ehrlich and “highlighted the fact that he was not named in the lawsuit”
and “shar[ed] with him his fortune of not being named.” (Johnson Dep. 157:4-15.45)
Defendant Dierks also testified he had a conversation with Ehrlich sometime in 2016, and
they discussed the lawsuit and how Plaintiff apparently “drop[ped] the ball” and did not
include Ehrlich. (Dierks Dep. at 109-110.46) Ehrlich had notice of the claim through
discussions with his coworkers. Therefore, it is entirely reasonable to believe Ehrlich knew
or should have known he was mistakenly omitted from this lawsuit. As recited by the U.S.
Supreme Court in Krupski v. Costa Crociere S.p.A., “Though a potential defendant has a

See RCPD Defs’. Resp., ECF No. 230; ECF No. 230-9 (Supplemental Response to Plaintiff’s
First Request for Production of Documentation, served September 12, 2017); ECF No. 109 (Notice
of Service); and ECF Nos. 230-2, 230-3, and 230-4 (Reports of Johnson, Dierks and Ehrlich,
served that date).
45
Defendant Brian Johnson’s March 26, 2019 deposition transcript was produced by Plaintiff’s
counsel at the May 30, 2019 hearing and is maintained in the Chambers file.
46
Defendant Robert W. Dierks’ April 30, 2019 deposition transcript was produced by Plaintiff’s
counsel at the May 30, 2019 hearing and is maintained in the Chambers file.
44

28

‘strong interest in repose,’ repose should not be a ‘windfall’ for a defendant who possesses
sufficient notice of impending claims.”47
In sum, the facts of this case support Plaintiff’s argument that Ehrlich’s earlier
omission was inadvertent and Ehrlich had sufficient notice of the case. Finding the
amendment and addition of Ehrlich relates back under Rule 15(c)(1)(B) and (C), the RCPD
Defendants’ futility arguments are overruled. Aside from futility, the RCPD Defendants
fail to demonstrate any other basis to deny the amendment. Ehrlich has been deposed, and
discovery does not close for months. No argument was offered to suggest Ehrlich would
suffer any prejudice from being added to the case. Therefore, this “most important factor”48
supports the Court’s decision the addition of Ehrlich to the case is proper.
D.

Conclusion on Amendment

Applying the standards for consideration of amendment under Rule 15, and
accepting all Plaintiff’s factual allegations as true, the Court cannot deny the amendment
based upon Defendants’ futility contentions.

Additionally, Defendants failed to

demonstrate any amount of undue prejudice which may occur as a result of the amendment.
Therefore, finding Plaintiff’s proposed amendment not clearly futile, and would cause no
undue prejudice, the Court prefers this case to proceed on its full merits.49 In the interests
of justice, the Court allows Plaintiff to amend his Complaint.

47

560 U.S. at 550.
Brez, 2017 WL 3267610, at *7 (quoting Minter, 451 F.3d at 1207).
49
See Hinkle, 2012 WL 2581000, at *1 (citing Koch, 127 F.R.D. at 209).
48

29

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to Amend his
Second Amended Complaint (ECF. 191) is GRANTED. During the Mary 30, 2019
hearing, Plaintiff was ordered to file his Third Amended Complaint on or before June 10,
2019, and Plaintiff has done so. (Third Am. Compl., ECF No. 276.) The parties are
strongly cautioned future amendments to the pleadings, although not outright prohibited,
will be met with considerable scrutiny50 given the length of litigation and previous
opportunities to articulate the parties’ claims.

III.

Plaintiff’s Motion to Enforce Subpoena (ECF No. 255)
On April 3, 2019, Plaintiff filed a Motion to Enforce Subpoena (“Motion to

Enforce”) to compel compliance with a subpoena issued to the Kansas Highway Patrol
(“KHP”). The subpoena requests at issue are:
13.
All documents relating to the Kansas Allied Agency SWAT Survey
regarding the Kansas Highway Patrol and/or Special Response Team that
was conducted in 2015.
14.
All documents relating to results of the Kansas Allied Agency SWAT
Survey regarding the Kansas Highway Patrol and/or Special Response Team
that was conducted in 2015.
15.
All documents relating to the independent SWAT Team Assessment
commissioned by the Kansas Highway Patrol in 2015, including but not
limited to the results of such assessment.51

50

See Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citing Castleglen, Inc. v.
Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.1993); Foman, 371 U.S. at 182) (noting
“failure to cure deficiencies by amendments previously allowed” is one reason the court may use
to deny leave to amend).
51
ECF No. 256, pp. 1-2.
30

On January 29, 2019, KHP responded to these subpoena requests by asserting they
call “for documents protected by the attorney-client privilege.”52 On February 19, 2019,
Plaintiff’s counsel asked KHP’s counsel to explain the factual basis for assertion of the
attorney-client privilege and to provide a privilege log.53 In response, KHP, in a letter
dated February 26, 2019, stated the requests call for “documents protected by the
attorney-client privilege and attorney work product protection,” and provided a privilege
log, which in its entirety stated:
The Kansas Highway Patrol retained attorney, Eugene P. Ramirez, Esq., of
Manning & Kass, Ellrod, Ramirez, Trester LLP attorneys at law in 2015
in anticipation of ligation. The “survey” you reference (official name you
set forth in your subpoena - Kansas Allied Agency SWAT; survey name
unknown to KHP), was issued by Mr. Ramirez as part of his legal services
rendered to our agency as KHP’s attorney. The raw results of the “survey”
you referenced were never given to the KHP but only generally mentioned
in Mr. Ramirez’s attorney work product provided to the Chief Legal
Counsel of the KHP. Such work product is the independent report
regarding KHP’s SRT team, 98 pages in length, prepared by KHP’s
retained counsel, Eugene P. Ramirez, Esq., in anticipation of litigation.54
Thus, pursuant to the above privilege log, the only responsive document in KHP’s
possession to the above subpoena requests is the independent report regarding KHP’s
Special Response Team (“SRT”), which KHP claims is protected by the work-product
doctrine and attorney-client privilege. In support of his Motion to Enforce, Plaintiff argues
KHP has not met its burden in showing the work-product doctrine and attorney-client
privilege apply. KHP, of course, insists both are appropriate.

52

ECF No. 256, Exhibit 3, pp. 3-4.
ECF No. 256, p. 2 and Exhibit 4.
54
ECF No. 256, Exhibit 5.
53

31

To aid it in resolving the Motion to Enforce, the Court requested KHP to submit the
independent report to it for an in-camera review. KHP complied, and the Court fully
reviewed the report, which is titled Independent Report to the Kansas Highway Patrol
Regarding the Kansas Highway Patrol SRT Team (“Independent Report”), before the May
30th hearing. For the reasons stated below, the Court finds the Independent Report is not
protected from disclosure by either the attorney-client privilege or work-product doctrine.55
A.

Duty to Confer

As a threshold matter, the Court first considers whether the parties have sufficiently
conferred regarding Plaintiff’s Motion to Enforce, as is required by D. Kan. Rule 37.2.56
A review of the briefings indicates counsel attempted to confer via correspondence and
telephone in an effort to resolve their disputes.57 However, the Court was unsure if
substantive conversations regarding the privilege issues had occurred,58 and asked counsel
to confer again ahead of the May 30th hearing. Counsel did so and reported back they

In his Motion to Enforce, Plaintiff also raises an issue regarding KHP’s failure to identify or
produce email communications relevant to the subpoena requests at issue. (See ECF No. 256 at
pp. 7-8.) However, the parties informed the Court they would be able to resolve this dispute
through the conferral process and without the Court’s intervention.
56
This Local Rule provides the court will not entertain any motion to compel unless the attorney
for the moving party has conferred or has made reasonable effort to confer with opposing counsel
concerning the matter in dispute prior to the filing of the motion. A “reasonable effort to confer”
means more than mailing or faxing a letter to the opposing party. It requires the parties in good
faith to converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.
D. Kan. Rule 37.2
57
See ECF No. 255, p. 2.
58
See ECF No. 262, p. 2 at ¶ 10.
55

32

were unable to resolve their dispute.59 As such, the Court is satisfied counsel have
adequately conferred as required by the above-cited rule.
B.

Legal Standards
1.

Work-Product Doctrine

Work-product protection is governed by Fed. R. Civ. P. 26(b)(3). To establish
work-product protection, a party must show “(1) the materials sought to be protected are
documents or tangible things; (2) they were prepared in anticipation of litigation or for
trial; and (3) they were prepared by or for a party or a representative of that party.” 60
The work-product doctrine protects from discovery those documents, things and
mental impressions of a party or its representative, particularly its attorney, developed in
anticipation of litigation or trial.61 The doctrine is not intended to protect work prepared
in the ordinary course of business or investigative work unless it was done so under the
supervision of an attorney in preparation “for the real and imminent threat of litigation or
trial.”62 For the doctrine to apply there must be a real and substantial probability that
litigation will occur at the time the documents were created.63

59

Counsel did, however, report they were able to resolve an issue regarding identification and
production of email communications without court intervention. See supra note 55.
60
Kannaday v. Ball, 292 F.R.D. 640, 648 (D. Kan. 2013) (quoting Johnson v. Gmeinder, 191
F.R.D. 638, 643 (D. Kan. 2000) (citing Zapata v. IBP, Inc., 175 F.R.D. 574, 576 (D. Kan. 1997));
see also Mackey v. IBP, Inc., 167 F.R.D. 186, 200 (D. Kan. 1996); Fed. R. Civ. P. 26(b)(3).
61
U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 247 F.R.D. 656, 657 (D. Kan. 2007).
62
Kannaday, 292 F.R.D. at 648 (citing U.S. Fire Ins. Co., 247 F.R.D. at 657).
63
Id.
33

There are two components in determining whether documents are prepared “in
anticipation of litigation.”64 The first is the causation requirement—the document in
question must have been created because of the anticipation of litigation (i.e. to prepare for
litigation or for trial).65 The second component imposes a reasonableness limit on a party’s
anticipation of litigation—the threat of litigation must be “real” and “imminent.”66 In
addition, courts look “to the primary motivating purpose behind the creation of the
document to determine whether it constitutes work product. Materials assembled in the
ordinary course of business or for other non-litigation purposes are not protected by the
work-product doctrine.”67
2.

Attorney-Client Privilege

Because this litigation arises out of a federal cause of action, federal law governs
the application of the attorney-client privilege.68 Under federal common law, the essential
elements of the attorney-client privilege are: “(1) where legal advice of any kind is sought
(2) from a professional legal advisor in his capacity as such, (3) the communications
relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if
the protection is waived.”69

64

Id. (quoting Marten v. Yellow Freight Sys., Inc., No. CIV. A. 96-2013-GTV, 1998 WL 13244,
at *10 (D. Kan. Jan. 6, 1998)).
65
Id.
66
Id.
67
Id.
68
New Jersey v. Sprint Corp., 258 F.R.D. 421, 425 (D. Kan. 2009).
69
Id.
34

The privilege “protects confidential communications by a client to an attorney made
in order to obtain legal assistance from the attorney in his capacity as a legal advisor.”70
The privilege also protects advice given by the lawyer in the course of representing the
client.71 The privilege protects communications with in-house counsel as well as outside
attorneys.72 However, information is not privileged simply because it comes from an
attorney.73 The mere fact that one is an attorney does not render everything he does for or
with the client privileged.74 Thus, the privilege “is to be extended no more broadly than
necessary to effectuate its purpose.”75
As stated above, not every communication between an attorney and client is
privileged, only confidential communications which involve the requesting or giving of
legal advice.76 The focal point of the protection afforded by the attorney-client privilege
lies with communications between attorneys and their clients.77

And, although the

privilege protects disclosure of substantive communication between attorney and client, it
does not protect disclosure of the underlying facts by those who communicated with the
attorney.78 There must be a connection between “the subject of the communication and the
rendering of legal advice” for the attorney-client privilege to shield the communication

70

Id. (quoting Marten, 1998 WL 13244, at * 6).
Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 390 (1981)).
72
Id.
73
Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997).
74
Id.
75
In re Universal Service Fund Telephone Billing Practices Litigation, 232 F.R.D. 669, 674 (D.
Kan. 2005) (quoting Great Plains Mut. Ins. Co. v. Mut. Reinsurance Bureau, 150 F.R.D. 193, 196
(D. Kan. 1993)).
76
Id. at 674 (quotations and internal citations omitted).
77
Id. at 675 (quotations and internal citations omitted).
78
Id. (quotations and internal citations omitted).
71

35

from disclosure.79 Also, legal advice must predominate for the communication to be
protected.80 The privilege does not apply where the legal advice is merely incidental to
business advice.81
3.

Burden to Establish Privileges

KHP, as the party asserting the attorney-client privilege and work-product doctrine,
bears the burden of establishing that either or both apply.82 To carry that burden, KHP
must make a “clear showing” that the asserted privilege applies.83 KHP must “‘describe in
detail’ the documents or information to be protected and provide ‘precise reasons’ for the
objection to discovery.”84 The Federal Rules of Civil Procedure require a fairly detailed
and specific showing to withhold discovery on privilege grounds.85 Fed. R. Civ. P.
45(e)(2)(A) provides that a person withholding subpoenaed information under a claim that
it is privileged must: “(i) expressly make the claim; and (ii) describe the nature of the
withheld documents, communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the parties to assess the
claim.”

79

Id. (quoting Burton v. R.J. Reynolds Tobacco Co., 175 F.R.D. 321, 328 (D. Kan. 1997)).
In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. at 675.
81
Id.
82
See Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984); McCoo v.
Denny's Inc., 192 F.R.D. 675, 680 (D. Kan. 2000).
83
McCoo, 192 F.R.D. at 680.
84
Id. (quoting Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Midland Bancor, Inc., 159 F.R.D.
562, 567 (D. Kan. 1994)).
85
In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. at 671.
80

36

This detailed and specific showing is typically presented in the form of a privilege
log.86 A privilege log under District of Kansas precedent should include the following:
(1) A description of the document explaining whether the document
is a memorandum, letter, e-mail, etc.;
(2) The date upon which the document was prepared;
(3) The date of the document (if different from # 2);
(4) The identity of the person(s) who prepared the document;
(5) The identity of the person(s) for whom the document was
prepared, as well as the identities of those to whom the document and copies
of the document were directed, including an evidentiary showing based on
competent evidence supporting any assertion that the document was created
under the supervision of an attorney;
(6) The purpose of preparing the document, including an evidentiary
showing, based on competent evidence, supporting any assertion that the
document was prepared in the course of adversarial litigation or in
anticipation of a threat of adversarial litigation that was real and imminent; a
similar evidentiary showing that the subject of communications within the
document relates to seeking or giving legal advice; and a showing, again
based on competent evidence, that the documents do not contain or
incorporate non-privileged underlying facts;
(7) The number of pages of the document;
(8) The party’s basis for withholding discovery of the document; and
(9) Any other pertinent information necessary to establish the
elements of each asserted privilege.87
Further, KHP must “provide sufficient information to enable the Court to determine
whether each element” of the asserted privilege is satisfied.88 This burden can be met only

86

Kannaday, 292 F.R.D. at 645.
Id. (citing In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. at 673).
88
McCoo, 192 F.R.D. at 680 (emphasis in original) (citing Jones v. Boeing Co., 163 F.R.D. 15, 17
(D. Kan. 1995)).
87

37

by an evidentiary showing based on competent evidence and cannot be discharged by mere
conclusory assertions or blanket claims of privilege.89
C.

Discussion
1. Work-Product Doctrine

Plaintiff argues KHP fails in proving work product applies based on the lack of
information provided in the privilege log. The Court agrees Plaintiff’s privilege log is
greatly lacking in detail. There are no dates given regarding when the Report was prepared
or received by KHP. There is no indication of whether the Report was shared with any
other person or agency outside of the KHP. And, there is no explanation for assertion of
work product other than a blanket claim the Report was prepared in anticipation of ligation.
KHP’s brief in opposition to Plaintiff’s Motion to Enforce gives no better details.
KHP only states:
In May of 2015, after being alerted to the possibility of potential litigation,
the Kansas Highway Patrol hired Eugene P. Ramirez, Esq., of Manning &
Kass, Ellrod, Ramirez, Trester LLP attorneys. KHP was seeking legal
services from this firm, specifically Mr. Ramirez, who specializes in legal
and operational liability issues regarding SWAT operations. At all times
there was an understanding that Mr. Ramirez was acting within his scope as
an attorney and KHP was his client. In the scope of his representation of the
KHP, Mr. Ramirez prepared a report which included his mental impressions
and his legal advice to his client the KHP.90
There are no details regarding any anticipated litigation and when the potential for
litigation surfaced compared to when KHP sought out Mr. Ramirez’s firm in May of 2015.
In other words, there is no way to know whether the threat of litigation was “real” and

89
90

Kannaday, 292 F.R.D. at 645.
ECF No. 262, p. 4.
38

“imminent” at the time the document was prepared. When asked about the anticipated
litigation at the May 30th hearing, KHP responded a complaint was filed with the agency
about an incident involving the SRT and use of excessive force, which incident is the
subject matter of the present action. Per the KHP, concerns regarding this complaint
triggered the agency to reach out to Mr. Ramirez. However, it is unclear to the Court why
this information was not provided in KHP’s privilege log or opposition brief. But, more
importantly, a review of the Report itself reveals this is simply not the case. For instance,
page 50 the Report states “in the past 15 years, SRT has never had a complaint or a lawsuit
from a suspect as a result of use of force.” If Mr. Ramirez was contacted regarding
concerns over an incident involving excessive force, surely the Report would address that
incident. But, the Report does not.
Rather, the Report shows KHP commissioned Mr. Ramirez and other outside law
enforcement professionals to conduct an independent review of the SRT to ensure
compliance with current law enforcement practices and to recommend areas of
improvement. For example, page 6 of the Report states:
Within the experience of the evaluators, the decision by the KHP to elicit an
independent outside assessment of its Special Response Team is almost
unprecedented. The KHP is to be commended for exhibiting exceptional
foresight and leadership in choosing to ensure that the policies, procedures,
and utilization of the Special Response Team is in keeping with
contemporary law enforcement practices. This preemptive action will
undoubtedly result in a more efficient process, and in the long run, hopefully
reduce potential liability.
And, page 69 of the Report states the “goal of this report was to provide a roadmap to assist
a good team into becoming a great team. The recommendations are based on years of real-

39

world experience and represent what we think are the best practices in the SWAT
Community.”
Additionally, the scope of the Report is very broad.

The evaluators give

recommendations on topics ranging from training to the type of firearms and vehicles the
SRT uses to recruitment methods. The Report appears to evaluate/give recommendations
on every aspect of the SRT. Thus, it is hard to imagine how soliciting wide-scale
recommendations for improvement of the SRT is in anticipation of litigation. It’s doubtful
to the Court any anticipated litigation would relate to all of the topics covered in the Report.
And, KHP did not specify in its privilege log or elsewhere whether only certain portions
of the Report should be protected.
For the foregoing reasons, the Court finds KHP has not met is burden in showing
the work-product doctrine protects the Report from disclosure.
2.

Attorney-Client Privilege

Similarly, Plaintiff argues KHP has not met its burden to show the attorney-client
privilege is proper. Plaintiff states KHP’s mere assertion of attorney-client privilege in the
privilege log, without more information, is insufficient. The Court agrees, and also finds
that KHP’s opposition brief does not provide any better explanation. It states “Mr.
Ramirez, as legal advisor to KHP, prepared this report to provide communication to his
client, the KHP. The Independent Report includes legal advice to KHP from Mr. Ramirez
and was made in confidence while acting as a legal advisor to KHP. All communications

40

set forth in this report relate to this intended purpose.”91 There is no indication of the nature
of the legal advice sought or given. A blanket assertion is insufficient.92
After reviewing the Report, the Court believes the main purpose of the Report is not
to give legal advice. Rather, the Report is more business-related. As stated above, the
purpose of the Report was to have an independent outside source evaluate KHP’s policies,
practices and procedures regarding the SRT to see if improvement was needed in any area.
If any legal advice is given in the Report, it is incidental to this business advice, and thus
not protected.93 However, it is hard to tell what specific portions of the Report might
contain legal advice without KHP so designating in its privilege log or in its brief. The
Report is 98 pages long and does not seem to encompass legal advice at all; rather, it
includes recommendations for improving the functioning of the SRT.
The Court found one instance in 98 pages that might contain legal advice. The
Report, at page 25, discusses the factors a court would consider when evaluating the
reasonableness of a forced entry and recommends wearing an audio recording and
preparing more detailed reports to show compliance with the factors. This might come
close to being legal advice, but again, it is incidental to the overall business purpose of the
Report.94

91

Id. at pp. 4-5.
See Kannaday, 292 F.R.D. at 645.
93
In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. at 675 (“Legal advice must
predominate for the communication to be protected. The privilege does not apply where the legal
advice is merely incidental to business advice.”) (internal citations omitted).
94
Id.
92

41

Additionally, regarding the survey results specifically, they are only referenced at
pages 64 and 65 of the Report. Apparently, three separate surveys were conducted for the
Report. But, the only survey results included in the Report were how others would rate the
quality of service and professionalism provided by the SRT. The response options were
“Excellent, Good, Adequate, Needs Improvement, Unsatisfactory, or Do not know.” In
this Court’s view, these responses are not akin to giving legal advice.
KHP’s privilege log also fails to state the Report was prepared by not only the
attorney, Mr. Ramirez, but by several law enforcement professionals who appear to be
experts in SWAT team operations. The use of third-party experts will not destroy the
attorney-client privilege if the third-party experts were retained to facilitate the effective
communication of legal advice between the attorney and client. Thus, communications
among the attorney, client, and expert are protected by the attorney-client privilege as long
as the other elements of the attorney-client privilege are met.95
Here, however, KHP has made no showing these SWAT experts were retained to
facilitate the communication of legal advice. Rather, a review of the Report shows they
were likely retained to provide recommendations on how to improve the functioning of the
SRT and to ensure the SRT is in keeping with contemporary law enforcement practices.
Therefore, the fact these non-attorney experts helped prepare the Report is also contrary to
the notion the Report is protected by the attorney-client privilege. Additionally, the
privilege log fails to state if anyone outside of KHP received a copy of the Report. Without

95

See New Jersey v. Sprint Corp., No. 03-2071-JWL, 2006 WL 8440758, at *2 (D. Kan. Dec. 28,
2006).
42

such information, it is hard to tell whether it is truly confidential, as is required for attorneyclient communications.
Finally, KHP likens the Report to an investigation and cites several cases holding
that investigative reports are protected under the attorney-client privilege and work-product
doctrine. However, these cases all related to an investigation being undertaken in the face
of alleged wrong doing and potential litigation. As explained in the section above, this
does not appear to be the case here. KHP has not provided an explanation of what the
Report is investigating, rather, the Report is an evaluation of SRT operations to make
recommendations for improvement and to ensure compliance with current law enforcement
practices. Thus, the Court finds KHP has not met its burden to show the attorney-client
privilege protects the Report from disclosure.
D.

Conclusion

KHP fails to meet its burden to show the work-product doctrine and attorney-client
privilege protect the Report from disclosure. Additionally, an in-camera review of the
Report shows these privileges do not apply as the Report was not prepared in anticipation
of litigation or to give legal advice. Rather, it appears KHP commissioned the Report to
receive an independent evaluation of SRT operations and recommendations for
improvement. Therefore, the Court grants Plaintiff’s Motion to Enforce and orders KHP
to produce the Report to Plaintiff.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Enforce Subpoena
(ECF No. 255) is GRANTED.

43

IT IS SO ORDERED.

Dated at Wichita, Kansas this 24th day of July, 2019.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

44