Brightwell v. Hershberger et al
Filing
136
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/10/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DAVID BRIGHTWELL
:
v.
:
Civil Action No. DKC 11-3278
:
GREG HERSHBERGER, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil
rights case is a motion for leave to file an amended answer
filed by Defendants Gregg L. Hershberger, et al. (“Defendants”).
(ECF No. 114).
The issues have been fully briefed, and the
court now rules, no hearing being deemed necessary.
105.6.
I.
Local Rule
For the following reasons, the motion will be granted.
Background
A.
Factual Background
The
following
facts
are
drawn
from
Plaintiff
David
Brightwell’s (“Mr. Brightwell” or “Plaintiff”) second amended
complaint.
(ECF No. 80).1
Plaintiff, at all relevant times, was
incarcerated at the Roxbury Correctional Institution (“RCI”) in
Hagerstown, Maryland.
(Id. ¶ 4).
Plaintiff alleges that, at
multiple times in October 2009, he was physically abused by
correctional
1
officers,
including
some
Defendants,
at
RCI.
Additional alleged facts are put forth in a prior opinion.
(ECF No. 69, at 2-4).
Plaintiff contends that he was “known by Defendants as an inmate
who routinely filed complaints,” and that, in February 2011,
after
refusing
to
stop
abused by Defendants.
filing
complaints,
(Id. ¶ 20).
he
was
physically
Plaintiff alleges that he
was denied medical treatment for the injuries sustained during
the incident and the abuse has caused him “severe back pain,”
requiring him to support himself while standing.
(Id. ¶ 49).
Plaintiff’s complaint asserts that the 2009 and 2011 incidents
were part of an ongoing conspiracy and pattern of abuse among
correctional officers at RCI.
B.
(Id. ¶¶ 10, 68).
Procedural History
Plaintiff,
initially
proceeding
pro
se,
commenced
action by filing a complaint on November 15, 2011.
this
(ECF No. 1).
Plaintiff filed a motion for leave to file his first amended
complaint to name additional Defendants (ECF No. 6), and the
amended complaint was filed on January 23, 2012.
(ECF No. 10).
On February 26, 2013, the undersigned granted in part and denied
in part Defendants’ motion to dismiss and directed Plaintiff’s
newly
appointed
counsel
(ECF Nos. 69; 70).
to
file
a
second
amended
complaint.
Plaintiff, through appointed counsel, filed
his second amended complaint on July 15, 2013.
(ECF No. 80).
The second amended complaint includes additional details about
the alleged incidents, most notably allegations about the 2009
incidents.
Plaintiff’s second amended complaint includes seven
2
counts:
violation
violate
of
constitutional
constitutional
rights;
rights;
violation
of
conspiracy
to
constitutional
rights by failure to supervise and train; state tort claims for
battery,
intentional
infliction
of
emotional
distress,
and
negligence; and violation of the Maryland Declaration of Rights.
(ECF No. 80 ¶¶ 51-93).
On September 24, 2013, Defendants filed
an answer to the second amended complaint.
(ECF No. 89).
After several joint motions for extension of time (ECF Nos.
91; 94; 97; 99; 102), Defendants filed the pending motion for
leave to file an amended answer on March 31, 2015, approximately
four weeks before discovery was then scheduled to end.
114).
(ECF No.
On April 3, 2015, Defendants, following a court order to
comply with Local Rule 103.6 (ECF No. 117), filed a redline
version of their amended answer (ECF No. 119).
Plaintiff filed
an opposition on April 17, 2015 (ECF No. 120), and Defendants
replied (ECF No. 124).
The parties filed two subsequent consent
motions for extension of time (ECF Nos. 131; 134), and discovery
closed on August 31, 2015 (ECF No. 135).
II.
Standard of Review
The Federal Rules of Civil Procedure provide that a party
may amend a pleading as a matter of course within 21 days of
serving it.
Fed.R.Civ.P. 15(a)(1).
Once the right to amend as
a matter of course expires, “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave.”
3
Fed.R.Civ.P. 15(a)(2).
Leave is not difficult to obtain: the
court
it
will
freely
give
“when
justice
so
requires.”
Id.
Denial of leave to amend should occur “only when the amendment
would be prejudicial to the opposing party, there has been bad
faith on the part of the moving party, or the amendment would be
futile.”
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th
Cir. 1986); see also Mayfield v. National Ass’n for Stock Car
Auto Racing, Inc., 674 F.2d 369, 379 (4th Cir. 2012).
“Delay
alone, however, without any specifically resulting prejudice, or
any
obvious
should
not
design
by
dilatoriness
suffice
as
reason
for
to
harass
denial.”
Aircraft Corp., 615 F.2d 606, 613 (4th
the
Davis
Cir. 1980);
opponent,
v.
Piper
see also
Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006).
III. Analysis
Defendants’
proposed
amended
answer
relevant part, six affirmative defenses.2
seeks
to
add,
in
The amended answer
adds the following affirmative defenses: contributory negligence
and assumption of risk, statute of limitations, the Maryland
Tort
Claims
Act,
failure
to
comply
with
administrative
and
procedural prerequisites, and failure to exhaust administrative
2
Although Plaintiff contends that the amended answer adds
ten defenses, an examination of the redline version of the
amended answer (ECF No. 119) makes clear that one defense is a
general denial (ECF No. 119 ¶ 94) and three are simply restyled
recitations of defenses included in the original answer (Id. ¶¶
95-97).
4
remedies.
(Id. ¶¶ 98-103).
Defendants argue that “[j]ustice
requires that colorable defenses be allowed to proceed absent
prejudice or unfair surprise to the non-moving party.”
114-1, at 5).
made
in
futile.
They contend that the proposed amendments are not
bad
faith,
do
not
prejudice
Plaintiff,
and
are
not
Plaintiff counters by primarily focusing on Defendants’
significant delay in filing an amended answer.
9-11,
(ECF No.
14-15).
Plaintiff
further
argues
(ECF No. 120, at
that
he
would
be
prejudiced by the proposed amendments, and that the defenses
lack “merit.”
(Id. at 12-14).
Plaintiff, although asserting
that Defendants have not offered any reason to justify their
delay in amending their answer, makes no allegations of bad
faith.
Accordingly,
Defendants’
amended
complaint
should
be
allowed absent a showing of prejudice or futility.
A.
Prejudice
Plaintiff
argues
that
Defendants’
amended
answer
“will
inject into this case a host of new legal theories based on
facts [he] believed were undisputed and about which [he] will
have no opportunity to conduct adequate discovery.”
120, at 2).
(ECF No.
Plaintiff contends that, even though the motion was
filed approximately four weeks prior to the scheduled close of
discovery, he will be unable to fully conduct discovery because
the motion was filed after the deadline for written discovery.
Plaintiff notes that Defendants have not provided a reason to
5
“justify” their delay and “do not and cannot allege that they
seek to assert the affirmative defenses as a result of newly
discovered evidence.”
(Id. at 14).
Defendants
that
counter
the
amended
answer
is
not
prejudicial because it only adds affirmative defenses; it does
not plead new facts or add counterclaims.
(ECF No. 124, at 2).
The affirmative defenses “do not allege any new facts or pertain
to
matters
for
which
Plaintiff
(ECF No. 114-1, at 4).
has
not
already
considered.”
Defendants assert that, at the time of
filing, Plaintiff had nearly four weeks to continue discovery
and could still send written discovery requests.
Further, the
discovery deadline had, at the time of filing and subsequently,
been
extended
many
times.
Finally,
Defendants
argue
that
Plaintiff is not prejudiced by the amended answer because, in
addition to filing the motion before the close of discovery,
Defendants filed the motion well in advance of the dispositive
motion deadline and before a trial date was scheduled.
(ECF No.
124, at 7-8).
Much
answer
of
focuses
Plaintiff’s
on
the
opposition
eighteen
to
month
Defendants’
delay
amended
between
when
Defendants filed their initial answer and their amended answer.
Defendants’ only justification for the delay is that, following
the retirement of an attorney handling the case, current defense
counsel “noticed that important colorable defenses had not been
6
plead.”
(ECF
No.
114-1,
at
3).
The
undersigned,
like
Plaintiff, does not find this to be a compelling reason for
delaying the inclusion of basic affirmative defenses by eighteen
months.
Delay, however, “cannot block an amendment which does
not prejudice the opposing party.”
Frank M. McDermott, Ltd. v.
Moretz, 898 F.2d 418, 421 (4th Cir. 1990).
The United States
Court of Appeals for the Fourth Circuit has reversed a district
court’s
refusal
to
allow
an
amended
answer
even
though
the
“delay inexcusably and intolerably frustrated the purpose” of an
arbitration program because the opposing party could not show
prejudice.
Id.
“Whether an amendment would be prejudicial is a factual
determination.
Courts
look
at
the
nature
of
the
proposed
amendment, the purpose of the amendment, and the time when the
amendment was filed.”
Equal Rights Center v. Archstone Smith
Trust, 603 F.Supp.2d 814, 818 (D.Md. 2009) (citing Laber, 438
F.3d at 427).
The Fourth Circuit has explained that:
A common example of a prejudicial amendment
is one that “raises a new legal theory that
would require the gathering and analysis of
facts
not
already
considered
by
the
[opposing party, and] is offered shortly
before or during trial.”
Foman v. Davis,
371 U.S. 178, 182 (1962).
An amendment is
not prejudicial, by contrast, if it merely
adds an additional theory of recovery to the
facts already pled and is offered before any
discovery has occurred.
7
Laber, 438 F.3d at 427.
The current case falls between the two
extremes highlighted in Laber.
At the time the amended answer
was filed, extensive discovery had been completed, but there was
still approximately four weeks of discovery remaining, and the
parties
filed
multiple
joint
motions
for
extensions
ultimately extended discovery until August 31, 2015.
that
Plaintiff
asserts that additional discovery would be required to address
Defendants’ affirmative defenses, but the affirmative defenses
he mistakenly uses to illustrate this point were included in
Defendants’
specifically
additional
original
asserted,
discovery
answer.
and
As
it
would
is
be
such,
not
Plaintiff
readily
required
Defendants’ additional affirmative defenses.
in
has
not
apparent,
why
response
to
At the very least,
“[a]ny potential prejudice to plaintiff[] may be wholly cured
with a small window of additional discovery.”
Baltimore County
FOP Lodge 4 v. Baltimore County, 565 F.Supp.2d 672, 675 (D.Md.
2008); see also Hemphill v. ARAMARK, Inc., No. ELH-12-1584, 2013
WL 55665, at *2 (D.Md. Jan. 2, 2013) (granting a motion to amend
even though it “would effectively require a brief extension of
the discovery deadline”).
Further, no trial date has been set,
and Plaintiff has sufficient time to address the affirmative
defenses in his forthcoming dispositive motion.
Cf. Sherwin-
Williams Co. v. Coach Works Auto Collision Repair Center, Inc.,
No. WMN-07-CV-2918, 2010 WL 889543, at *2 (D.Md. Mar. 4, 2010).
8
The
cases
Plaintiff
cites
to
support
his
claims
of
prejudice, and other cases that reject amended pleadings, are
distinguishable because the defendants in those cases attempted
to
add
wholly
“substantial
new
new
counterclaims
discovery”
nature of the litigation.”
and
that
would
have
“significantly
required
changed
the
Lone Star Steakhouse & Saloon, Inc.
v. Alpha of Virginia, Inc., 43 F.3d 922, 940 (4th Cir. 1995)
(emphases
added);
see
also
Newport
News
Holdings
Corp.
v.
Virtual City Vision, Inc., 650 F.3d 423, 440 (4th Cir. 2011).
Here,
conversely,
standard
Defendants’
affirmative
claims.
defenses
Irrespective
of
amended
based
on
Defendants’
answer
simply
Plaintiff’s
inexcusable
adds
existing
delay,
Plaintiff has not shown that he will be prejudiced by the timing
of the amended answer.
Plaintiff also asserts that “Defendants’ prolonged delay in
raising
the
affirmative
defense
alleging
failure
to
exhaust
administrative remedies [is prejudicial because it] could expose
[him] to a statute of limitations defense that the Defendants
would not otherwise have.”
Plaintiff
argues
that
(ECF No. 120, at 10).
“Defendants
have
waived
Further,
this
defense
because they neglected to raise it promptly in response to any
of [his] complaints.”
(Id. at 13).
have not waived the defense.
Defendants aver that they
(ECF No. 124 at 7).
Defendants
also contend that Plaintiff is not prejudiced or surprised by
9
the late assertion of the failure to exhaust defense because he
was aware of the defense as early as 2011.
124-1, at 4).
(ECF Nos. 124, at 6;
There is “‘ample authority’ in the Fourth Circuit
‘for the proposition that absent unfair surprise or prejudice to
the
plaintiff,
waived.’”
a
defendant’s
affirmative
defense
is
not
Chase v. Peay, 286 F.Supp.2d 523, 531 (D.Md. 2003)
(citing Brinkley v. Harbour Recreation Club, 180 F.3d 598, 612
(4th Cir. 1999)).
Here, there is no indication that Plaintiff
was surprised by the exhaustion requirement; in fact, it appears
that he was well aware of it.3
Additionally, as Judge Williams
noted in a similar case:
[T]he
purported
prejudice
of
which
[Plaintiff] complains is prejudice of his
own doing.
. . .
Consequently, the
prejudice [he] now faces is hardly different
than the prejudice a plaintiff confronted
with a meritorious [exhaustion] defense
inevitably
faces.
Furthermore,
it
is
somewhat
speculative
to
conclude
that
[Plaintiff] would have managed to exhaust
administrative
remedies
before
the
expiration of the statute of limitations had
[Defendants] raised [the defense earlier].
Blake v. Maynard, No. 8:09-cv-02367-AW, 2012 WL 5568940, at *4
(D.Md.
Nov.
14,
2012).
Accordingly,
Plaintiff
has
not
demonstrated prejudice sufficient to deny Defendants’ motion for
leave to amend their answer.
3
This opinion, however, makes no assessment of the merits
of the failure to exhaust defense.
10
B.
Futility
Plaintiff asserts that the proposed statute of limitations
and failure to exhaust defenses are futile.
12-14).
(ECF No. 120, at
The standard for futility is the same as for a motion
to dismiss under Rule 12(b)(6).
See U.S. ex rel. Wilson v.
Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)
(affirming the district court’s denial of a motion to amend
because the “proposed amended complaint does not properly state
a claim under Rule 12(b)(6) and lacks sufficient particularity
under Rule 9(b)”); Perkins v. United States, 55 F.3d 910, 917
(4th
Cir. 1995) (holding that an amendment is futile if the
amended
claim
would
fail
to
survive
a
motion
to
dismiss).
“Leave to amend should be denied on the ground of futility only
when the proposed amendment is clearly insufficient or frivolous
on its face.”
Cappetta v. GC Servs. Ltd. P’ship, No. 3:08CV288,
2009 WL 482474, at *4 (E.D.Va. Feb. 24, 2009) (citing Davis, 615
F.2d at 613; Oroweat Foods Co., 785 F.2d at 510).
Plaintiff argues, in response to the statute of limitations
defense, that his amended complaint that includes allegations of
the 2009 incidents relates back to his initial complaint because
they “arise out of the same pervasive practice of correctional
officer misconduct at RCI.”
Fed.R.Civ.P.
15(c)(1).
(ECF No. 120, at 12); see also
Plaintiff
may
be
correct
in
his
assessment of the merits of his relation back argument, but
11
“[d]etermining
whether
amendment
would
be
futile
does
not
involve an evaluation of the underlying merits of the case.”4
Kolb v. ACRA Control, Ltd., 21 F.Supp.3d 515, 522 (D.Md. 2014).
The
statute
of
limitations
defense
is
not
so
clearly
insufficient or frivolous on its face as to be futile.
With
regard to the failure to exhaust defense, Plaintiff includes
only
a
conclusory
administrative
abuse.”
statement
remedies
that
offered
(ECF No. 120, at 13).
he
him
“pursued
regarding
all
of
the
Defendants’
Again, while perhaps be true,
Plaintiff’s statement alone is not enough to render the defense
futile at this time.
IV.
Conclusion
For the foregoing reasons, Defendants’ motion for leave to
file an amended answer will be granted.
A separate order will
follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
4
Notably, Plaintiff discusses these defenses as not being
“meritorious” rather than being “futile.”
12
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