Peterka v. Maplewood, Missouri, City of, et al.
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File Third Amended Petition Out of Time [ECF No. 58 ] is GRANTED, in part, and DENIED, in part. Signed by District Judge E. Richard Webber on 5/7/15. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CITY OF MAPLEWOOD, et al.,
Case No. 4:14CV00823 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion for Leave to File Third
Amended Petition Out of Time [ECF No. 58].
In his second amended complaint, Plaintiff Timothy Peterka (“Plaintiff”) makes the
following allegations [ECF No. 22]. Plaintiff, along with Lucinda Martin, was searching for
food in the dumpster of Gordon’s Food Service in Maplewood on February 23, 2014. The
Maplewood Police arrived and proceeded to question Plaintiff and Ms. Martin. Sergeant
Anthony Cavanaugh (“Defendant Cavanaugh”) ordered Plaintiff to sit on the ground while
Officer David Brown returned to his patrol car to search for Plaintiff’s information. After
Officer Brown confirmed Plaintiff’s information, Defendant Cavanaugh ordered Plaintiff to
stand up and face the wall. While Plaintiff was turning towards the wall, Defendant Cavanaugh
yanked Plaintiff by the hood of his jacket. When Plaintiff turned towards Defendant Cavanaugh,
he kicked Plaintiff’s feet out from under him causing Plaintiff to fall and split his chin open.
While on the ground, Defendant Cavanaugh placed Plaintiff in handcuffs. An ambulance was
called to the scene. After stopping by the hospital, Plaintiff was taken to the Richmond Heights
Detention Center and placed in a holding cell and processed for resisting arrest and failure to
comply. According to Plaintiff’s complaint, Plaintiff needed eleven stitches, suffered a sprained
wrist, and cracked ribs as a result of this incident.
Besides minor corrections, Plaintiff requests to add the following factual allegations to
the complaint [ECF No. 58-1]. Dumpster diving is not a crime in the City of Maplewood.
Defendant Cavanaugh had no reasonable suspicion of criminal activity on the part of Plaintiff.
Defendant Cavanaugh was in Plaintiff’s presence for approximately ten minutes without
conducting a pat-down search or investigating any potential crimes committed by Plaintiff.
Defendant Cavanaugh administered no medical aid to Plaintiff while waiting for the ambulance
to arrive. The Maplewood Police Department conducted an internal affairs investigation in
which it refused to interview any of the officers involved or Plaintiff. This investigation found
Plaintiff’s claims of excessive force to be unfounded. Prior internal affairs investigations have
revealed a pattern and practice of conducting inadequate investigations.
Plaintiff also seeks to add allegations to each of his counts against Defendants. Plaintiff
seeks to add allegations that Plaintiff’s constitutional rights were violated by Defendants
conducting a Terry stop without any foundation. In Count I, Plaintiff seeks to add language
about what is required to conduct a Terry stop and that Defendant Cavanaugh was deliberately
indifferent to Plaintiff’s need for medical treatment. In Count II, Plaintiff seeks to add
allegations Defendant City of Maplewood sanctioned customs such as conducting illegal
detentions and searches of subjects, failing to preserve evidence, failing to conduct fair and
unbiased internal affairs investigations and allowing officers to testify falsely in depositions.
When a party seeks to amend a pleading after the deadline in the applicable case
management order has passed, the request implicates both Federal Rule of Civil Procedure 15
and 16. Rule 16(b) governs the issuance and modification of pretrial scheduling orders while
Rule 15(a) governs amendment of pleadings. Fed. R. Civ. P. 16(b) and 15(a). The FRCP Rule
16(b) good-cause standard should be applied first, then the “when justice so requires” standard of
Rule 15(a) is applied. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008).
Good cause requires a change in circumstance, law, or newly discovered facts. Hartis v.
Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). “The primary measure of good cause
is the movant’s diligence in attempting to meet the order’s requirements.” Sherman, 532 F.3d at
716 (quoting Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). If a party has been diligent
in meeting the scheduling order’s deadlines, the Court should then decide if the amendment is
proper under Rule 15(a) including if there is prejudice to the other parties. Id., at 716-17.
Plaintiff’s amended complaint contains new allegations which are outlined supra but it
does not add additional counts against Defendants. The added allegations concern four primary
issues: (1) unlawful detention and search of Plaintiff, (2) failure to train officers on the
requirements to conduct a Terry stop, (3) failure to administer medical care to Plaintiff, and (4)
lack of an unbiased, diligent internal affairs investigation into Plaintiff’s claims.
Rule 16 – Good Cause Standard
District courts ruling on Rule 16(b) motions focus first, and primarily, on the diligence of
the party seeking the modification of the order. Sherman, 532 F.3d at 717. In the instant case,
Plaintiff sought leave to file an amended complaint on April 22, 2015. The case management
order sets May 1, 2015, as the close of discovery and the deadline for filing an amended
complaint was November 10, 2014. 1 Plaintiff asserts he filed his motion within two weeks of
completing depositions of witnesses from which new facts were discovered forming the basis of
the amendments to his complaint. Defendants argue these “new” facts were known by Plaintiff
well before the deadline because a video of the incident was produced prior to the deadline and
Plaintiff has first-hand knowledge of the incident as he was present.
Both Plaintiff and Defendants are correct. Some of the facts were already known to
Plaintiff prior to the deadline while some were not. Any new allegations about Defendant
Cavanaugh’s failure to provide medical care to Plaintiff while waiting for paramedics to arrive
was known to Plaintiff, as he was present and conscious during the incident. Therefore, Plaintiff
was not diligent in seeking to amend his complaint in regards to the claims of failure to provide
medical care to Plaintiff. However, the facts concerning the allegedly insufficient internal affairs
investigation would not have been known to Plaintiff prior to the disclosure of the internal affair
reports and the depositions of the officers. The deposition of Lieutenant Griffin who conducted
the internal affairs investigation was taken just two weeks prior to the filing of Plaintiff’s motion.
Plaintiff was diligent in seeking to amend the petition in regards to the internal affairs
The new allegations concerning Plaintiff’s Terry stop claims also would not have been
known to Plaintiff prior to the officers’ depositions because the depositions revealed the officers’
states of mind which are central to the claims. The depositions of these officers occurred at the
end of February, 2015. While this motion to amend was filed several weeks after those
depositions, the Court finds Plaintiff to be diligent in seeking to amend as Plaintiff chose to seek
amendment once rather than several times after each new piece of information arose.
The original case management order contains a deadline for amending the pleadings of November 10, 2014. The
amended case management order proposed jointly by the parties does not include a deadline for amending the
Thus, the Court finds Plaintiff was diligent in seeking to amend his complaint in regards
to the allegations concerning the Terry stop and the internal affairs investigation. However,
Plaintiff cannot show good cause to amend in regards to the failure to administer medical care to
Rule 15 – When Justice So Requires Standard
The analysis does not end with a determination the Plaintiff has good cause to amend.
Plaintiff must now meet the standard in Rule 15. Sherman, 532 F.3d at 715. A district court
may deny a motion to amend if “there are compelling reasons such as undue delay, bad faith, or
dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the amendment.” Id. (quoting Moses.com Sec.,
Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005)).
The allegations Plaintiff seeks to add about a Terry stop fundamentally change the nature
of the count against Defendants. In the current complaint, Plaintiff asserts claims of excessive
force against Defendants. Adding a claim for unlawful detention and search pursuant to an
improper Terry stop changes the Fourth Amendment analysis from a seizure to a search. This
would require additional expert testimony. Expert reports and depositions have already been
completed in this case. Allowing Plaintiff to add this additional claim would force Defendants to
expend considerable resources including time and money in finding and hiring another expert
and conducting additional depositions. Similarly, allowing Plaintiff to amend the complaint to
include allegations against the City of Maplewood for failure to train officers on the
requirements of a Terry stop would also cause undue prejudice to Defendants as this claim would
likely require additional expert testimony as well. Had Plaintiff sought to amend his complaint
prior to the depositions of experts, the analysis may be different. But where experts have already
written reports and been deposed and the deadline for dispositive motions is quickly
approaching, allowing Plaintiff to amend his complaint as to these two claims would cause
undue prejudice to Defendants.
Plaintiff’s new allegations about the internal affairs investigation do not raise the same
concerns as to undue prejudice to Defendants. 2 At most, some additional discovery may be
needed. The Court will allow the amendment and limited additional discovery should the
Defendants require such discovery, at the expense of Plaintiff. All other deadlines will remain as
set in the current case management order.
The Court finds Plaintiff has good cause to amend his complaint to add allegations of an
insufficient internal affairs investigation as outlined in the proposed third amended complaint
attached to Plaintiff’s motion for leave to amend [ECF No. 58]. The Court does not find Plaintiff
has established good cause, nor can he overcome the undue prejudice to Defendants for the
remaining allegations Plaintiff seeks to include. 3 Plaintiff’s motion for leave to amend as to
these allegations will be denied.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File Third Amended
Petition Out of Time [ECF No. 58] is GRANTED, in part, and DENIED, in part.
So Ordered this 7th day of May, 2015.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
By allowing the amendment of the complaint to include allegations of an allegedly insufficient internal affairs
investigation, the Court does not suggest such allegations can be the basis of a constitutional violation.
Plaintiff will be allowed to make the other proposed minor corrections to the complaint that do not add new
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