Westerfield v. United States of America et al

Filing 202

Memorandum Opinion and Order: Plaintiff's Motion to Amend his Complaint is DENIED. Judge Patricia A. Gaughan on 7/26/13. (Related doc 192 ) (LC,S) Modified text on 7/26/2013 (B,B).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Jason Westerfield,
Plaintiff,
Vs.
United States of America, et al.,
Defendant.

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CASE NO. 07 CV 3518
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon Plaintiff’s Motion to Amend his Complaint (Doc.
192). This is a civil rights case. For the reasons that follow, the motion is DENIED.
FACTS1
Plaintiff, Jason Westerfield, brings this action against defendants, United States of

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The facts have been presented on numerous occasions throughout
this litigation. The Court presumes that the readers are well aware
of the operative facts and will not fully explain each detail unless
necessary for a resolution of the instant motion.
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America2, Lee Lucas, Robert Cross, Richland County, Chuck Metcalf, Matt Mayer, Larry Faith,
and Jamal Ansari. Lucas, Cross, and Ansari were considered federal employees at the time of
the alleged wrongdoing, while Metcalf, Mayer, and Faith were employed by Richland County.
On August 8, 2008, this Court granted qualified immunity to all defendants on the federal
claims. Plaintiff filed a motion for reconsideration and presented new information relevant to the
issues. The Court denied the motion on the grounds that the information could have been
presented earlier. Plaintiff appealed and the Sixth Circuit reversed on the grounds that in the
“interests of justice,” the Court should have considered the information even though it could
have been presented earlier. On remand, defendants again moved for qualified immunity. The
Court granted qualified immunity to defendants Lucas and Metcalf on all claims except
plaintiff’s Brady claim related to “Count 30.” The Court granted qualified immunity to the
remaining defendants, i.e., Cross, Ansari, Faith, and Mayer, on all federal claims. The parties
did not address the state law claims. Because Cross and Ansari are federal employees, the
United States was substituted as the defendant and these two individuals are no longer
defendants in this case. The state law claims, i.e., intentional infliction of emotional distress and
malicious prosecution, remained pending.
Defendants Lucas and Metcalf appealed the Court’s denial of qualified immunity with
respect to the Brady violation. The Sixth Circuit affirmed this Court’s decision. Thereafter,
Faith and Mayer moved for summary judgment on the state law claims. Faith and Mayer argued

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The United States was originally dismissed as a defendant.
Plaintiff later refiled his claims against the United States in a new
matter. The Court consolidated the two actions on November 12,
2010. Plaintiff also originally named the City of Mansfield, but
voluntarily dismissed this defendant on January 8, 2008.
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that the Court’s qualified immunity ruling necessarily foreclosed the state law claims. In part,
these defendants argued that it was “reasonably clear” that plaintiff intended to assert a Section
1983 claim for malicious prosecution. Thus, according to Faith and Mayer, the Court’s grant of
qualified immunity on this claim would prevent a corresponding malicious prosecution claim
grounded in state law. This Court rejected the argument and noted the following:
Plaintiff indicates that whether plaintiff “could have stated a federal [claim] for malicious
prosecution” is not the issue and that plaintiff is the “master of his claim.” (Doc. 152 at
n. 2). Plaintiff further indicates that defendants’ reliance on federal law for his malicious
prosecution claim is misplaced because “his claim is governed by state law.” (Id. at n. 4).
The Court relied on plaintiff’s representations that the malicious prosecution claim was
asserted under state–not federal–law in concluding that the ruling on qualified immunity does
not foreclose the state law malicious prosecution claim. Moreover, none of defendants who
sought qualified immunity sought qualified immunity for a “malicious prosecution” claim.
Therefore, the Court did not address this “claim” in its Opinion. The Court then concluded that
Faith and Mayer failed to point to evidence or other legal reasons why the claims failed as a
matter of law.
The United States also moved to dismiss the state law claims. The government argued
that the “discretionary function exception” to the waiver of sovereign immunity applies to this
case. The Court rejected the argument. The Court further held that plaintiff failed to properly
plead a conspiracy claim. The Court, however, determined that neither dismissal nor summary
judgment was appropriate with respect to the state law claims for malicious prosecution and
intentional infliction of emotional distress.3

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The government also argued for the dismissal of other claims,
which plaintiff conceded.
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Accordingly, the remaining claims in this case are as follows: a Brady violation claim
against defendants Lucas and Metcalf, and state law claims for malicious prosecution and
intentional infliction of emotional distress against defendants United States, Metcalf, Faith,
Mayer, and Richland County.
After the Sixth Circuit affirmed this Court’s qualified immunity ruling, the Court held a
status conference on August 3, 2012. At the status conference, the Court set a discovery cutoff
of February 18, 2013. Since the initial status conference, the Court held three additional
conferences, the most recent having been held on May 6, 2013. The Court set a final pretrial
date of October 28, 2013, and a trial date of November 4, 2013. On May 29, 2013, defendants
filed a total of five summary judgment motions. Nearly a month later, plaintiff sought leave to
amend the complaint. According to plaintiff, documents turned over by “defendants” on March
20, 2013 demonstrate that representations made by “defendants” as to the scope of the
previously produced documents were false. Plaintiff now seeks to add a myriad of Fourth
Amendment claims. Previously dismissed defendant Cross opposes the motion, as do defendants
United States, Metcalf, Faith, Mayer, and Lucas. In addition, non-party Tom Verhiley opposes
the motion.
ANALYSIS
Under Federal Rule of Civil Procedure 15(a) leave to amend a pleading shall be freely
given “when justice so requires.” Fed. R. Civ. Pro. 15(a); See also Wade v. Knoxville Utilities
Board, 259 F.3d 452 (6th Cir. 2001). In determining whether to grant leave to amend, this Court
must consider several factors. “Undue delay in filing, lack of notice to the opposing party, bad
faith by the moving party, repeated failures to cure deficiencies by previous amendments, undue

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prejudice to the opposing party, and futility of amendment are all factors which may affect the
decision.” Id. at 458. To deny a motion for leave to amend, a district court cannot base its
decision on delay alone and, instead, must determine whether the amendment will cause
significant prejudice to the nonmoving party. Duggins v. Steak ‘N Shake, 195 F.3d 828, 834 (6th
Cir. 1999). However, when an amendment is sought at a late stage in the litigation, there is an
increased burden to show justification on the part of the party requesting the amendment. Wade,
259 F.3d at 459; See also Duggins, 195 F.3d at 834.
Here, plaintiff argues that leave to amend should be granted to permit him to add Fourth
Amendment claims for: malicious prosecution, unlawful detention, fabrication of evidence, and
conspiracy to deny Fourth Amendment rights. Plaintiff argues that “defendants” previously
informed the Court that they produced “the entire internal files of the United States Attorney’s
Office in Cleveland, United States Drug Enforcement Administration, and Richland County
Sheriff’s Office.” According to defendants, these documents were part of the trial exhibits
introduced at defendant Lucas’s criminal trial. Plaintiff argues that “defendants” tendered a new
set of documents on March 20, 2013. According to plaintiff, these documents contain a wealth
of new evidence, which supports the assertion of Fourth Amendment claims. Plaintiff also
claims that the documents “should have been included in defendant’s original tender.” In other
words, defendants misinformed both plaintiff and the Court by stating that the files of various
governmental offices were included as trial exhibits.
In response, defendants make a number of arguments. Defendant Cross argues that the
only information about him contained in the “new” documents consists of Cross’s discipline for
“two ministerial administrative violations relating to drug buys not involving Westerfield.”

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According to Cross, he would suffer prejudice if the Court allowed plaintiff to add him back into
this case two years after receiving qualified immunity. He further argues that he never produced
any documents to plaintiff and, therefore, even if documents were withheld, it had nothing to do
with Cross. Cross also argues that amendment would be futile. According to Cross, the DEA
was not involved in plaintiff’s investigation, search, or arrest and plaintiff fails to point to
anything in the “new” documents that would alter this fact. Cross claims that plaintiff fails to
point to any document allegedly withheld by any party that comes from the Richland County
files. Thus, whatever “new” information exists, it is not relevant to this case. Cross also argues
that the motion for leave to amend is completely devoid of any discussion of Cross.
Non-party Tom Verhiley argues (through counsel for Cross) that he was never a party to
this case. As such, he could not be responsible for any non-disclosure of documents. Moreover,
he claims he would suffer prejudice if he were to be added so many years after plaintiff filed this
case. Verhiley believes that plaintiff erred in referencing him in the motion. According to
Verhiley, a nearly identical motion was filed in a different case pending in this district. Verhiley
believes that plaintiff “cut and pasted” the brief without realizing that Verhiley was not a named
defendant in this action. In the reply brief, plaintiff acknowledges that he did not intend to name
Verhiley in this action. Accordingly, Verhiley will not be added as a defendant.
The United States argues that it cannot be held liable for Fourth Amendment violations of
its employees. Thus, to the extent defendant is attempting to name the United States as a
defendant to the proposed claims, the amendment is futile. The United States also claims that it
did not withhold documents. According to the United States, this case is one of many cases
pending in this district. It appears that counsel for plaintiff is counsel for eleven other plaintiffs.

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According to the United States, all parties understood that the initial voluntary production
undertaken by the government included the trial transcript and exhibits from the Lee Lucas trial.
The United States claims that plaintiff propounded additional document requests during
discovery. It appears that similar requests were made in the “Danny Lee Brown” case. A global
resolution was reached in both cases and, by agreement, the United States agreed to produce a
number of documents, including the final DOJ OIG/OPR investigative report, dated January 21,
2011, Lee Lucas’ Official Personnel File from 2010 to 2012, and a number of other investigative
reports and personnel files. A consent motion was filed in the “Danny Lee Brown” case on
February 1, 2013. Thus, according to the government, all parties understood what documents
had previously been produced and what documents were outstanding. As such, plaintiff cannot
now be heard to complain that it relied on a faulty representation by the government regarding
the extent of the initial production. Regardless, the government claims that the “new evidence”
is not new at all– rather it is cumulative of evidence already possessed by plaintiff. Moreover,
none of the evidence relates to Westerfield at all.
Defendant Metcalf also argues that none of the evidence is “new.” In fact, he points to
several instances in which plaintiff previously cited nearly the exact same information in various
court documents. Metcalf also points out that plaintiff fails to attach a proposed amended
complaint. In addition, Metcalf claims he will be prejudiced by any late amendment. Metcalf
also points out that none of the “new evidence” relates to plaintiff.
Defendants Faith and Mayer argue that none of the documents come from Richland
County and the evidence is at most cumulative of the “mountain” of evidence plaintiff already
possessed. In addition, these defendants argue that it is absurd to think that plaintiff was able to

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state a claim for state law malicious prosecution, but unable to state a federally based malicious
prosecution claim until after learning of the new evidence. Defendants also argue that even
assuming some piece of evidence is “new,” plaintiff waited too long to inform the Court.
Defendants point out that plaintiff received the documents at issue on March 20, 2013 and did
not seek leave to amend until over three months later. Defendants also claim that much of the
specific evidence plaintiff claims is “new,” was already in plaintiff’s possession and relied on by
plaintiff in various court documents.
Defendant Lucas joins in the arguments made by defendant Cross and the United States.
In reply, plaintiff argues that the government acted deceptively in indicating that the trial
exhibits included the complete files from various governmental agencies. In addition, plaintiff
indicates that it does not dispute that the government fully complied with its obligations under
the second disclosure. Rather, it is the second disclosure that revealed that the government
misrepresented the extent of its initial disclosure. In addition, plaintiff argues that it was a
strategy decision to forego assertion of a malicious prosecution claim based on federal law and,
instead, rely only on a state law claim.
Upon review, the Court denies plaintiff’s motion for leave to amend. As an initial matter,
the Court finds that plaintiff unduly delayed seeking leave to amend the complaint. Although
plaintiff claims that the government deceptively informed plaintiff that the initial document
production included all of the files of various governmental agencies, plaintiff knew of the
existence of the very documents he relies on now no later than February 1, 2013. At that time,
the parties entered a consent motion for the production of these documents in the “Danny Lee
Brown” case. The motion contains a list of relevant documents and the documents are identified

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by title. At this point, discovery in this case was still ongoing. Yet, plaintiff filed no motion
alerting the Court to any discovery dispute or irregularity. Moreover, by March 20, 2013,
plaintiff was in possession of the documents. Yet, plaintiff waited until a month after the filing
of five summary judgment motions to seek leave. In all, plaintiff waited until over three months
after receiving the documents before seeking leave to amend. Given the extensive procedural
history of this almost six-year old case, plaintiff’s delay counsels against allowing an
amendment.
Even assuming the government misrepresented the extent of its initial disclosure4, the
Court finds that an amendment would be futile as much of the evidence plaintiff points to was
available in some form or another long before plaintiff sought leave to amend. By way of
example only, plaintiff claims that an audio transcription, in which Mayer allegedly states that he
will erase part of the recording, is “new evidence.” Mayer, on the other hand, claims that this
very recording was an exhibit at Lucas’s criminal trial and was turned over by the government to
the Mansfield plaintiffs. Defendant Mayer points out that a plaintiff in a different case expressly
relies on the recording in opposing summary judgment. Plaintiff does not respond to this
argument. Not only is it apparent that some of the “new” evidence is not actually new, but

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Plaintiff does not successfully demonstrate that the records
disclosed (including those that post-date the Lucas trial) should
have been included in the initial disclosure. For example, the final
DOJ OIG/OPR investigative report, which plaintiff heavily relies
on in his motion, is dated January 21, 2011, nearly a year after the
Lucas trial ended. Obviously, this document could not have been
disclosed as part of the initial production as it does not appear that
it existed at the time. Plaintiff makes no attempt whatsoever to
point out which documents should have been disclosed as part of
the initial production.
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plaintiff does not cite the Court to any specific piece of evidence that is different in kind from the
evidence previously disclosed. Rather, as many defendants argue, the evidence is cumulative of
all previously disclosed evidence. Moreover, all of the evidence is wholly unrelated to plaintiff.
Rather, the evidence involves defendants’ actions as they pertain to other individuals.
Plaintiff’s motion also fails because plaintiff does not tie any of the evidence to any
proposed claim or any particular defendant. In fact, plaintiff does not provide the Court with a
proposed amended complaint. It is not clear whether plaintiff seeks to assert all of the Fourth
Amendment claims against all of the defendants. Rather, plaintiff generically cites to the
existence of evidence (much of which is simply cumulative of other evidence) and makes
sweeping conclusions. For example, plaintiff argues as follows:
Additionally, numerous defendants and law enforcement witnesses have now accused
Lucas of falsely claiming in his reports that they could corroborate Bray’s claims, when
the witnesses were not present or denied being able to offer any corroboration. All of
this new evidence would support allegations that Lucas fabricated probable cause in this
case and conspired with Bray and the other defendants to frame plaintiff.
Plaintiff, however, wholly ignores that the fact that, unlike in most of the Mansfield
cases, the DEA and defendant Lucas were not yet involved at the time plaintiff was arrested.
Therefore, defendant Lucas had nothing to do with establishing probable cause against
Westerfield.5 Accordingly, an amendment would prove futile. Plaintiff mentions no other
defendants in his discussion of “fabricating probable cause.”
The Court further rejects plaintiff’s argument that his tactical decision not to assert a

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These types of errors likely stem from the fact that plaintiff’s
counsel filed nearly identical briefs in at least several cases in
which they represent other Mansfield plaintiffs. As noted,
however, this case is different than many of the others due to the
timing of the involvement of the DEA.
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Fourth Amendment claim for malicious prosecution should be blamed on defendants. Here,
plaintiff’s state law claim for malicious prosecution remains pending. Plaintiff wholly fails to
present any argument as to why he did not assert a corresponding Fourth Amendment claim for
malicious prosecution in the first place. There is nothing suggesting that the claim only became
viable as a result of the new evidence.
Not only does plaintiff fail to establish that an amendment is warranted on the basis of
“new evidence,” the Court finds that defendants would suffer severe prejudice should an
amendment be allowed. This case was filed nearly six ago and has been up on appeal twice.
Discovery is closed and five summary judgment motions are pending. A trial date has been set.
To begin anew at this late juncture would be prejudicial to defendants. Accordingly, for this
additional reason, the Court finds that leave to amend is not warranted.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Amend his Complaint is DENIED.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 7/26/13

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