Powell v. Fugate et al

Filing 92

OPINION & ORDER : a. The Court ADOPTS DE # 85 , in part, to the extent it denies stipulation and recommends denial of leave to add assault and battery claims against Smith and Young, and an abuse of process claim against Young, and REJECTS DE #85 i n all other respects. b. The Court GRANTS DE # 72 , in part, as discussed in this opinion, and deems the Complaint amended as stated herein. Defendants Young and Smith may file any additional Answer by September 5, 2018. c. The Court doubts the nee d for more discovery, but opens a 30 day window for further discovery by Defendants Young and Smith. d. Defendants shall file any supplement to the existing dispositive motion, as to the amendment grounds only, by October 5, 2018. Plaintiff may respond within ten (10) days thereafter; Young and Smith may reply within five (5) further days. The entire dispositive motion then shall stand submitted for decision. Signed by Judge Robert E. Wier on 8/27/18.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
JEFFERY POWELL,
Plaintiff,
v.
DAVID FUGATE, et al.,
Defendants.

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No. 6:17-CV-122-REW-HAI
OPINION AND ORDER

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The Court has carefully reviewed all pending filings on the status of the pleadings and
potential amendment. DE ##72, 74, 77 (Motion, Response, Reply); 85 (Recommended
Disposition); 87, 88, 89 (Objections, Response, Reply). For the reasons that follow, the Court will
adopt in part and reject in part the Recommended Disposition.
I. Relevant Facts
In a case centering on alleged jail violence, Powell realized late that his Complaint had a
serious flaw; it omitted certain specific claims against certain named Defendants. Although Powell
included a host of factual assertions against Defendants Smith and Young, in the claim
enumeration, he did not explicitly include either within particular theories. Plaintiff sought to
remove the flaw by clarification or to correct it by amendment, thus making complete the intended
claim roster. See DE #72. Full briefing ensued. The corrective effort by Plaintiff comes many
months after the amendment deadline, and it also follows summary judgment briefing and the end
of discovery. Indeed, Defendants’ timely summary judgment motion is what alerted Plaintiff to
the Complaint’s deficiencies. See, e.g., DE #87 at 4.

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United States Magistrate Judge Ingram, on referral from District Judge Bunning (then
presiding), recommended against relief. DE #85. In a typically thorough and scholarly opinion,
Judge Ingram determined that Powell had failed to include against Defendants Smith and Young
claims for excessive force, abuse of process and assault/battery. He then applied both Rule 15 and
Rule 16(b) to assess the propriety of amendment, ultimately denying for lack of demonstrated good
cause and due to prejudice against the defense. Objection briefing followed. The Court applies
Rule 72(b)(2)-(3) to the objections, which are sufficiently specific to challenge both prongs of the
amendment analysis.1
The Court has fully assessed the entire record and defers to Judge Ingram’s accurate
discussion (see DE #85 at 2–5) of the Complaint content. That pleading painted a detailed factual
picture as to alleged acts of Defendants Smith and Young, but it formally included them only in
the claim alleging intentional infliction of emotional distress. Plaintiff calls this an error or

This Court reviews de novo those parts of Judge Ingram’s recommendation subject to
proper objection. 28 U.S.C. § 636(b)(1). To merit de novo review, objections must be specific.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986); Fed. R. Civ. P. 72(b)(2)-(3). “A specific
objection ‘explain[s] and cite[s] specific portions of the report which [counsel] deem[s]
problematic.’” United States v. Wigginton, No. 15-cr-5-GFVT-HAI, 2015 WL 8492457, at *2
(E.D. Ky. Dec. 10, 2015) (quoting Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007)).
Contending lack of specificity in Powell’s objections, Defendants urge the Court to decline review.
DE #88 at 3. But, while the contours of Powell’s challenges to the recommendation are somewhat
amorphous, the issues that underly his objections are plainly ascertainable.
In arguing presence of good cause for amendment and lack of prejudice to Defendants, see,
e.g., DE #87 at 4, Powell demonstrates his specific objections to Judge Ingram’s contrary findings.
The objections are sufficient to “focus attention on those issues . . . that are at the heart of the
parties' dispute[.]” Thomas v. Arn, 106 S. Ct. 466, 471 (1985). Consequently, the Court reviews
the issues Powell raises de novo but focuses on only those objections properly identified for
consideration. See Smith v. Detroit Fed’n of Teachers Local 231, Am. Fed’n of Teachers, AFLCIO, 829 F.2d 1370, 1373–1374 (6th Cir. 1987) (declining to address improperly preserved
objections to recommendation).
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oversight by counsel, seeking to remedy the problem via amendment. Should the Court grant relief
from the error at this late stage?
II. Discussion
The question puts this case in the overlap of three Rules: 15, 16(b), and 6(b). Rule 15
certainly favors free amendment and is a pro-merits mechanism. See Moore v. City of Paducah,
790 F.2d 557, 562 (6th Cir. 1986) (noting Rule 15’s “liberality in allowing amendments to a
complaint”); see also Janikowski v. Bendix Corp., 823 F.2d 945, 951 (6th Cir. 1987) (quoting Teft
v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)) (“The thrust of the provision ‘is to reinforce the
principle that cases should be tried on the merits rather than on the technicalities of pleadings.”).
When justice requires amendment, a court is to freely give it. However, cases and courthouses run
on schedules, and orderly progression of litigation under a defined calendar helps the parties, the
public, and the courts reach timely and efficient results through a predictable system. Thus, with
party input, the Court constructs a schedule in every case and expects party compliance. See Fed.
R. Civ. P. 16(b)(1) (requiring a judge to issue a scheduling order “after receiving the parties’
[26(f)] report” or “after consulting with the parties’ attorneys”) (emphasis added); Williams v.
Chattanooga Area Regional Trasp. Auth., 64 F.3d 644 (Table), No. 94-6372, 1995 WL 496723, at
*1 (6th Cir. Aug. 18, 1995) (upholding sanctions for failure to comply with scheduling order).
Litigation is alive, so the schedule sometimes changes. Rule 16 accounts for this. “A
schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P.
16(b)(4). Thus, for good cause, a party encountering a deadline can seek relief—a common event.
Good cause is a flexible concept; an assessing court looks for adequate justification in the context
of the particular request. “The primary measure of Rule 16's ‘good cause’ standard is the moving
party's diligence in attempting to meet the case management order's requirements.” Inge v. Rock

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Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002). But, “[a]nother important consideration for a district
court deciding whether Rule 16’s ‘good cause’ standard is met is whether the opposing party will
suffer prejudice by virtue of the amendment.” Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir.
2003).
The third rule—appearing for the first time in this drama—is Rule 6(b). This rule is the
primary determinant for a post-deadline relief request. Under Rule 6(b), “[w]hen an act may or
must be done within a specified time, the court may, for good cause, extend the time . . . on motion
made after the time has expired if the party failed to act because of excusable neglect.” Fed. R.
Civ. P. 6(b)(1)(B). That is the scenario here: the amendment deadline expired in October 2017,
and Powell did not file the amendment motion until April 3, 2018. Rule 6(b) is the governing
standard (although much of Rule 16’s good-cause analysis crosses over).
“The Sixth Circuit has applied, and other Circuits regularly apply, Rule 6(b) when
reviewing decisions to amend (or not) a case schedule.” See, e.g., Morgan v. Gandalf, Ltd., 165 F.
App’x 425, 427–28 (6th Cir. 2006). The Sixth Circuit has articulated five factors relevant to
considering whether the party requesting an extension failed to act within the time originally
allotted due to “excusable neglect”: “(1) the danger of prejudice to the nonmoving party; (2) the
length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay;
(4) whether the delay was within the reasonable control of the moving party, and (5) whether the
late-filing party acted in good faith.” Nafziger v. McDermott Intern., Inc., 467 F.3d 514, 522 (citing
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 113 S. Ct. 1489, 1498 (1993)).
“The determination of excusable neglect is ‘an equitable one, taking account of all relevant
circumstances surrounding the party’s omission.’” Howard v. Nationwide Prop. & Cas. Ins. Co.,
306 F. App’x 265, 266 (6th Cir. 2009) (quoting Pioneer, 113 S. Ct. at 1498). “[I]t is clear that

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‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not limited strictly to
omissions caused by circumstances beyond the control of the movant.” Pioneer, 113 S. Ct. at 1496.
The Rule directs courts to “balance” the five Pioneer factors, approaching the analysis with an
equitable ethos. See Howard, 306 F. App’x at 266.
In applying the Rule 6(b) factors to this case, the Court observes the following (sometimes
conflicting) considerations:
1. Powell named only the Authority and Fugate on the claims at issue, but the factual
allegations fairly included excessive force assertions against Smith and Young and
abuse of process assertions against Smith. Judge Ingram actually found notice of all
contested claims, a finding not objected to by the defense.2
2. Powell’s lawyer drafted the Complaint and yet claims ignorance of its flaws up until
the defense filed summary judgment. That is a hard sell, and counsel’s righteous
indignation is quite misplaced. The Complaint contains a vital mistake, and Powell
should not blame the defense for strategically attacking the operative pleading in the
case.3 A truly careful lawyer polices his own pleadings, and that did not happen here.
Still, is there enough in the Complaint to rationally excuse counsel for not timely
perceiving and correcting the deficiencies? It is plausible, in this context, that counsel
included the chief factual allegations but then, in finalizing the pleading, simply
omitted reference to Smith and Young in the claims iteration.

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It interests the Court that the defense, in the original response memo opposing amendment,
focused only on the absence of assault & battery in the Complaint. See DE #75 at 2–3. This is
reflective of the summary judgment briefing.
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The sanction request in DE #89 is improper and unfounded. The Court rejects out of hand the
idea that defense counsel had any duty to alert or notify Plaintiff of the Complaint’s frailties.
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3. The Court finds the prejudice argument and Judge Ingram’s “substantial prejudice”
finding, DE #85 at 15, overstated. The assault and battery claims would be entirely
new, as would any abuse of process theory extending to Young. However, the excessive
force theory for both Smith and Young, and the abuse of process factual allegations as
to Smith, at least by fair inference, are integral parts of the Complaint’s factual and
legal terroir. Indeed, the defense included substantive argument on summary judgment
as to both grounds. See DE #63-1 at 11, 14–16, 18, 20, and 25. Given that the players
have all been deposed and that the defense was ready enough to argue the merits, the
Court sees no real prejudice in entertaining those distinct theories. The defense even
retained an expert that opined specifically on the absence of excessive force. See DE
63-7 at 4 (“In my professional opinion based on all the materials reviewed in this case,
I found no evidence of excessive use of force on Supervisor's [sic] Smith nor any other
of the deputies involved in this case.”). If the defense planned to defend Smith and
other deputies against an excessive force claim, which it obviously did, the Court
should address the theory on the merits. Of course, the Court can, with minor
scheduling relief, ensure the defense suffers not a whit of harm.
4. Discovery is closed, and the dispositive motion deadline has passed. However, there is
no trial date. The Court doubts that allowing limited amendment would cause the need
for much additional discovery or briefing, given the overlapping cast of characters and
the core facts. There would be only minor, if any, scheduling impact.
Because the Court perceives no prejudice in allowing the proffered excessive force and
abuse of process theories, as stated above, the first Pioneer factor, prejudice to the nonmovant,
strongly favors amendment. The second factor, length of delay and impact on the proceedings,

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also weighs in favor of amendment, as discussed above. No trial date exists, and a slight
discovery/briefing window would eliminate any potential disadvantage to Defendants.4
The third and fourth factors—the reason for the movant’s delay and whether the delay was
within the movant’s control—are interrelated and weigh against permitting amendment. The fifth
and final factor, however, whether the movant acted in good faith, weighs in favor of permitting
amendment. The original Complaint provided adequate notice of the excessive force claims against
Smith and Young and the abuse of process claim against Smith, evincing Powell’s intent to plead
those causes of action. Powell’s lawyer could honestly (if mistakenly) have thought the Complaint
included more than it textually did; this seems to be the reading the defense itself operated under,
as its summary judgment briefing and case management show. There is no bad faith behind the
scheduling problems presented. Accordingly, on balance, and given the equitable nature of the
Rule, the 6(b) factors coalesce in favor of permitting limited amendment of the Complaint.
III. Conclusion
The Court finds that justice requires limited amendment here, despite Plaintiff’s
mismanagement of the amendment deadline. Finding excusable neglect stretches the concept to its
limits, because Plaintiff created the very structural pleading flaw now causing the problem. Despite
that, however, a fair and honest reading of the Complaint surely perceives that Powell intended to
assert an excessive force claim against all of the involved actors, to include the actors accused of
direct physical contact. He cites Young and Smith for specific physical abuse, which he calls
“excessive” treatment. DE #1-1 ¶ 27. Further, Powell makes specific assertions against Smith
relative to the abuse of process claim, that he made “untrue fabrications” in testimony for an extra-

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The Court is dubious that the defense wants or needs further discovery or briefing, but will extend
the opportunity.
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judicial purpose. Id. at ¶ 48. The uncorrected pleading flaw shows neglect, but the Court treats it
as excusable to a limited degree.
This is so because enforcing the deadline and disallowing amendment would forfeit
Plaintiff’s involved claims without any assessment of the merits. Sometimes that must happen, but
here, the Complaint gave notice about and colorably alleged that both Smith and Young had used
excessive force. Further, Smith’s involvement in the purportedly improper process abuse also
emerges from a reasonable assessment of the Complaint. Thus, barring amendment would
foreclose merits consideration of claims imbedded in the pleading—claims the defense is fully
prepared to defend against. The fact that the defense largely briefed those issues in the summary
judgment context demonstrates to the Court that it should eschew unwarranted formalism and
allow limited amendment.5
Thus, the Court accepts in part and rejects in part the recommendation in DE #85. The
Court allows amendment insofar as Powell asserts a constitutional excessive force claim against
Young and Smith via § 1983. Further, the Court allows amendment as to inclusion of Smith in the
abuse of process claim. Otherwise, for the reasons stated by Judge Ingram, the Court denies the
amendment request. The other claims are truly new, and introduction of those claims at this stage
would prejudice the defense and require a comparatively extensive schedule and briefing
modification.
This is a discretionary decision. The driving factors are: (a) denying amendment would
essentially terminate, without a merits decision, claims against actors accused directly of excessive

As Plaintiff argues, the amendment to conform mechanics of Rule 15(b)(1) show the Rule’s
bias in favor of a merits resolution, particularly in the absence of demonstrable prejudice.
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force6 and of (Smith) abuse of process; (b) the defense at all times has been well aware of the
theories and has actively defended against them (to include retention of an expert on the excessive
force claim); (c) the limited amendment allowed will result in no prejudice; and (d) the case can
remain essentially on the same track, despite the tardy amendment effort. For all of these reasons,
and despite counsel’s pleading inattention, the Court finds the requisite good cause, in this defined
context, and excuses Plaintiff’s default on the amendment deadline. Justice requires the
amendment sought, to the extent here permitted.
Accordingly, the Court ORDERS as follows:
a. The Court ADOPTS DE #85, in part, to the extent it denies “stipulation” and
recommends denial of leave to add assault and battery claims against Smith and Young,
and an abuse of process claim against Young, and REJECTS DE #85 in all other
respects.
b. The Court GRANTS DE #72, in part, as discussed in this opinion, and deems the
Complaint amended as stated herein. The Court deems the claims denied by Defendants
and deems applicable all affirmative defenses already pleaded by the defense. Thus,
the Court recognizes as pleaded and pending, via amendment, excessive force claims
against Smith and Young and an abuse of process claim against Smith. Defendants
Young and Smith may file any additional Answer by September 5, 2018.

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This result would not be consistent with the Sixth Circuit cases, such as Moore, which favor
amendment where the request is curative and fosters a merits decision, there is no surprise, and
there is no prejudice from delay. The existence vel non of prejudice is an intertwined
consideration with the quality of delay excuse. Here, the excuse is weak, but prejudice is wholly
absent.
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c. The Court doubts the need for more discovery, but opens a 30 day window for further
discovery by Defendants Young and Smith. Either may take necessary discovery
during that period. Plaintiff may not take further discovery.
d. Defendants shall file any supplement to the existing dispositive motion, as to the
amendment grounds only, by October 5, 2018. Plaintiff may respond within ten (10)
days thereafter; Young and Smith may reply within five (5) further days. The entire
dispositive motion then shall stand submitted for decision.
This the 27th day of August, 2018.

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