McIntyre et al v. Ogemaw County Board of Commissioners et al

Filing 43

ORDER Granting in Part and Denying in Part 36 Motion for Leave to Amend Complaint. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
STACY MCINTYRE, et al.
Plaintiffs,
v

Case No. 15-cv-12214
Honorable Thomas L. Ludington

OGEMAW COUNTY BOARD OF COMMISSIONERS,
et al.,
Defendants.
__________________________________________/
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO
FILE AMENDED COMPLAINT
On June 18, 2015 Plaintiffs filed this putative class action on behalf of all female inmates
of the Ogemaw County Jail who participated in a certain Sheriff Work program, or elected not to
participate in the program due to fears of constitutional violations related to the program, against
Defendants Ogemaw County Board of Commissioners, Howie S. Haft, and James Raymond
Gustafson. ECF No. 1. Plaintiffs filed an amended complaint on August 18, 2015, alleging that
Gustafson, a former employee of the Ogemaw County Sheriff Department, assaulted, battered
and sexually harassed female inmates who were incarcerated at the Ogemaw County Jail and
involved in the Work Program. Id. Plaintiffs allege five counts arising from Defendants’
conduct: (1) Deprivation of civil rights in violation of 42 U.S.C. § 1983; (2) Gross negligence;
(3) Assault and battery; (4) Invasion of privacy; and (5) Negligent and Intentional infliction of
emotional distress.
Plaintiffs contend that they learned of five additional putative class members during
discovery. ECF No. 36. On February 5, 2016 Plaintiff moved for leave to file an amended

complaint, seeking to join Candice McCarthy, Alyssa Oliver, Anna Maldonado, Angela Scherer,
and Janet Kamen as plaintiffs. Defendants do not oppose the addition of Candice McCarthy, but
argue that Plaintiffs’ proposed amendment is futile as to the other four proposed plaintiffs. ECF
No. 17. Because Defendants are correct, Plaintiff’s motion to amend will be granted in part and
denied in part.
I.
Plaintiffs’ factual allegations are presumed true for purposes of evaluating whether to
grant the motion to amend. Plaintiffs in this action are former inmates of the Ogemaw County
Jail. Defendant Board of Commissioners of Ogemaw County is a governmental agency which
Plaintiffs allege operates the Ogemaw County Sheriff Department. At all relevant times,
Defendant Hanft was the Ogemaw County sheriff and Defendant Gustafson’s commanding
officer. Defendant Gustafson, an employee of Ogemaw County, allegedly ran a Sheriff Work
Program and supervised inmate-participants.
Plaintiffs claim that Gustafson made improper sexual advances and unprivileged
touchings of female participants of the work program. Plaintiffs also claim that Gustafson’s
conduct was a “de facto policy” of Ogemaw County and the Ogemaw County Sheriff’s
department for a substantial period of time. Defendants allegedly tolerated Gustafson’s conduct,
as evidenced by (1) Failing to obtain proper approvals from the 34th Circuit Court as required by
MCL 51.251; (2) Failing to properly train, discipline, restrict, and control Gustafson; (3) Failing
to take adequate precautions in hiring, promoting, and retaining department employees; (4)
Failing to establish a proper system for dealing with sexual misconduct; (5) Failing to discipline
employees who engaged in sexual misconduct; and (6) Discouraging female inmates and family

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members from expressing their complaints. Plaintiffs claim that maintenance of this action as a
class action is superior to adjudicating the individual claims.
On February 5, 2016, Plaintiffs moved for leave to file a second amended complaint,
seeking to add five additional plaintiffs to the putative class. ECF No. 36. Plaintiffs allege that
two of the proposed class members, Candice McCarthy and Alyssa Oliver, were inmates and
participants in the work program. Plaintiffs allege that the other three proposed class members,
Anna Maldonado, Angela Scherer, and Janet Kamen (the “Family Member Plaintiffs”), were not
participants in the Work Program. Instead, Plaintiffs allege that they were assaulted, battered
and sexually harassed by Gustafson when they visited family members who were assigned to the
Work Program.

Plaintiffs therefore seek to expand the putative class to include females

incarcerated in the Ogemaw County Jail who participated in the Work Program, and female
family members of inmates who were present at program work sites. Defendants filed a response
in opposition to Plaintiff’s motion on February 22, 2016. ECF No. 40. Plaintiffs did not file a
reply.
II.
Under Federal Rule of Civil Procedure 15, a court should “freely give leave” to amend
“when justice so requires.” FED. R. CIV. P. 15(a)(2). “[T]he thrust of Rule 15 is to reinforce the
principle that cases should be tried on their merits rather than the technicalities of pleadings.”
Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (internal citations and quotations
omitted). Factors that courts should consider when determining whether to grant leave to amend
include “[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the
opposing party, and futility of amendment….” Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479,

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484 (6th Cir. 1973). “Decisions as to when justice requires amendment are left to the sound
discretion of the trial judge[.]” Robinson v. Michigan Consol. Gas Co. Inc., 918 F.2d 579, 591
(6th Cir. 1990).
A.
Defendants do not oppose the proposed addition of Candice McCarthy. Accordingly
Plaintiffs’ motion for leave to amend will be granted as to her addition to the putative class.
B.
Defendants claim that Plaintiffs’ proposed amendment is futile to the extent Plaintiffs
seek to add Alyssa Oliver and the Family Member Plaintiffs. “A proposed amendment is futile if
the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Riverview Health Inst.
LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (internal citation and quotation
marks omitted). A pleading fails to state a claim under Rule 12(b)(6) if it does not contain
allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S.
662, 678, (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the
non-movant’s favor and accepts the allegations of facts therein as true. See Lambert, 517 F.3d at
439. The pleader need not have provided “detailed factual allegations” to survive dismissal, but
the “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678, (quoting Twombly, 550 U.S. at 570).
i.

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Defendants first argue that Plaintiffs’ proposed joinder of Alyssa Oliver would be futile.
Defendants claim that Ms. Oliver was last an inmate at Ogemaw Jail on June 15, 2012, and that
her claims are therefore barred by the relevant statutes of limitations.

Plaintiffs have not

disputed that Ms. Oliver was last an inmate at Ogemaw Jail on June 15, 2012.
Under federal law, “the statute of limitations begins to run when the plaintiff knows or
has reason to know of the injury which is the basis of his action[,] and… a plaintiff has reason to
know of his injury when he should have discovered it through the exercise of reasonable
diligence.” McCune v. City of Grand Rapids 842 F.2d 903, 905 (6th Cir.1988) (citing Wilson,
471 U.S. at 268-71). Because Ms. Oliver was not incarcerated at the Ogemaw Jail at any time
after June 15, 2012, all incidents giving rise to her claim must have occurred prior to that date.
Plaintiffs do not allege that Ms. Oliver was unaware of her alleged injuries at the time the
wrongful actions allegedly took place. Accordingly, the relevant date for statute of limitations
purposes is June 15, 2012.
Defendants argue that Ms. Oliver would be barred from asserting her 42 U.S.C. § 1983
claim under the relevant statute of limitations. For purposes of § 1983 actions, federal courts
apply state personal injury statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 276,
(1985). In Michigan, a three-year statute of limitations applies to federal claims brought under §
1983. See M.C.L. § 600.5805(10); Cantu v. Michigan Dep't of Corr., 653 F. Supp. 2d 726, 742
(E.D. Mich. 2009). Because Ms. Oliver cannot satisfy the three-year statute of limitations, her §
1983 claim would be futile.
Defendants next argue that Ms. Oliver cannot satisfy the two-year statute of limitations
that applies to assault and battery claims. See M.C.L. § 600.5805(2). Defendants are correct, and
Ms. Oliver’s assault and battery claim would also be futile.

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Finally, Defendants argue that Ms. Oliver’s remaining claims are barred under the
general three-year statute of limitations for personal injury actions. See M.C.L. § 600.5805(10).
Defendants are correct, and Ms. Oliver’s remaining tort claims would again be futile. Because
Ms. Oliver cannot satisfy the statute of limitations for any of her proposed claims, joining her to
the action would be futile.
ii.
Defendants next argue that the proposed Family Member Plaintiffs’ claims are
substantially dissimilar to the claims brought by the existing Plaintiffs. Under Federal Rule of
Civil Procedure 20, persons may be joined as plaintiffs in an action if: “(A) they assert any right
to relief jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or
fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(2). “Joinder is
encouraged because it avoids multiple lawsuits involving similar or identical issues.” Pasha v.
Jones, 82 F.3d 418 (6th Cir. 1996) (citing Mosley v. General Motors Corp., 497 F.2d 1330,
1332-33 (8th Cir. 1974)). Rule 20 is permissive, not mandatory, and so allowing a party to
amend its complaint in order to add a party under Rule 20 is a matter for this Court’s discretion.
Plaintiffs allege that joinder of the Family Member Plaintiffs is proper because all claims
share the same transaction or occurrence – namely the operation of a “rogue” work program
supervised by Gustafson. However, the relevant questions of law and fact would be materially
different for the Family Member Plaintiffs, who were not under the custody of Defendant
Ogemaw County or participants of the Work Program supervised by Gustafson. The Defendants’
duty to the Family Member Plaintiffs would be materially different from their duty to the
incarcerated Plaintiffs.

Furthermore, questions of consent material to the Family Member

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Plaintiffs would be irrelevant to the incarcerated Plaintiffs.1 Plaintiff’s proposed addition of the
Family Member Plaintiffs will therefore be denied.
III.
Accordingly, it is ORDERED that Plaintiff’s motion for leave to file a second amended
complaint, ECF No. 36, is GRANTED IN PART AND DENIED IN PART. Plaintiffs are
GRANTED LEAVE to file a second amended complaint joining Candice McCarthy as a
Plaintiff.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 17, 2016

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 17, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

1

While irrelevant to the Plaintiffs’ current request, it is noted that joinder of the Family Member Plaintiffs would
also undercut Plaintiffs’ ability to meet the requirements for class certification under 23(a) and (b).

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