Wilson v. Hill
Filing
171
OPINION AND ORDER : Defendants motion for leave, Doc. No. 158 , is DENIED. Defendants motion to stay, Doc. No. 160 , which seeks a stay of the case schedule pending resolution of defendants Motion for leave, is DENIED as moot. Signed by Magistrate Judge Norah McCann King on 11/13/12. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAWRENCE E. WILSON,
Plaintiff,
vs.
Civil Action 2:08-CV-552
Magistrate Judge King
LEON HILL,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Leon Hill’s Motion
for Leave for this Court to Consider the Instant Pleading as a Third
Motion for Summary Judgment Raising Qualified Immunity (“Defendant’s
Motion for Leave”), Doc. No. 158.
Motion for Leave.
Plaintiff opposes Defendant’s
Plaintiff Lawrence E. Wilson’s Opposition to
Defendant’s Motion for Leave for this Court to Consider the Instant
Pleading as a Third Motion for Summary Judgment Raising Qualified
Immunity (“Plaintiff’s Response”), Doc. No. 163.
a reply.
Defendant has filed
Defendant Leon Hill’s Reply Brief in Support of His Motion
for Leave for this Court to Consider a Third Motion for Summary
Judgment Raising Qualified Immunity (“Defendant’s Reply”), Doc. No.
167.
Also before the Court is Defendant Leon Hill’s Motion to Stay
Case Schedule Pending Resolution of Dispositive Motion Raising
Qualified Immunity (“Defendant’s Motion to Stay”), Doc. No. 160, which
is ripe for consideration.
For the reasons that follow, Defendant’s
Motion for Leave is DENIED.
Defendant’s Motion to Stay is DENIED as
moot.
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I.
Background
This is an action instituted under the provisions of 42 U.S.C. §
1983, in which plaintiff, an inmate at the Pickaway Correctional
Institution (“PCI”), alleges that defendant corrections officer used
excessive force against him in violation of the Eighth Amendment to
the United States Constitution.
2008.
This case has been pending since June
On May 4, 2009, defendant filed his first motion for summary
judgment, arguing that there was no evidence that excessive force had
been applied or that plaintiff had suffered an injury.
Motion for Summary Judgment, Doc. No. 35, pp. 6, 10.
Defendant’s
The Court denied
that motion on February 22, 2010, concluding that the record reflected
genuine issues of material fact.
Opinion and Order, Doc. No. 45, pp.
9-10.
The Court appointed counsel for plaintiff on April 29, 2010.
Order, Doc. No. 52.
On July 1, 2011, defendant filed a second motion for summary
judgment, again arguing a lack of evidence on the issues of excessive
force and injury.
Defendant Leon Hill’s Second Motion for Summary
Judgment, Doc. No. 110.
The Court denied that motion on March 29,
2012, concluding that there existed a genuine issue of material fact
as to whether plaintiff suffered an injury.
Opinion and Order, Doc.
No. 147, pp. 43-44.
Defendant now seeks leave to file a third motion for summary
judgment.
Defendant’s Motion for Leave, p. 1.
The deadlines for the
completion of discovery and the filing of dispositive motions expired
on June 1, 2011 and July 1, 2011, respectively.
2
See Doc. Nos. 58,
103.
The parties apparently agreed to postpone defendant’s deposition
of plaintiff’s dental expert until after the resolution of defendant’s
second motion for summary judgment.
4; Defendant’s Reply, pp. 1-2.
See Plaintiff’s Response, pp. 3-
Defendant deposed plaintiff’s dental
expert on June 28, 2012, i.e., more than one year beyond the discovery
completion deadline.
Defendant’s Motion, p. 3.
Defendant asserts
that he learned of evidence at this deposition that supports his
request for summary judgment.
Id. at pp. 2-3.
Defendant also notes
that an audio tape of a January 8, 2008 Rules Infraction Board Hearing
was not submitted to the Court, and the defense of qualified immunity
was not raised, in his previous motions for summary judgment.
Defendant’s Motion for Leave, pp. 4-5.
II.
Standard
Rule 16(b) of the Federal Rules of Civil Procedure requires the
Court, in each civil action not exempt from that rule, to issue a
scheduling order that, inter alia, limits the time to file motions.
Fed. R. Civ. P. 16(b).
Where, as here, a party seeks leave to file a
dispositive motion after the deadline set in the scheduling order,
that party must show “good cause” and obtain the “judge’s consent.”
Fed. R. Civ. P. 16(b)(4).
“‘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 Fin. Corp.,
281 F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249
F.3d 807, 809 (8th Cir. 2001)).
“A district court should also
consider possible prejudice to the party opposing the modification.”
Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th
3
Cir. 2005) (citing Inge, 281 F.3d at 625).
The focus is, however,
“primarily upon the diligence of the movant; the absence of prejudice
to the opposing party is not equivalent to a showing of good cause.”
Ortiz v. Karnes, 2:06-cv-562, 2010 WL 2991501, at *1 (S.D. Ohio July
26, 2010) (citing Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind.
1995)).
Whether to grant leave under Rule 16(b) falls within the
district court’s discretion.
Leary v. Daeschner, 349 F.3d 888, 909
(6th Cir. 2003).
III. Discussion
Defendant seeks leave to file a third motion for summary
judgment, but he does not expressly address the “good cause” standard
of Rule 16(b).
Defendant essentially argues that leave should be
granted because, if granted, the third motion for summary judgment
would be found to be meritorious.
Defendant specifically argues that
evidence obtained after the denial of his second motion for summary
judgment entitles him to summary judgment.
Leave, pp. 3-7.
Defendant’s Motion for
Defendant also argues that he is entitled to
qualified immunity and risks waiving the defense, under Ortiz v.
Jordan, 131 S.Ct. 884, 889 (2011), if he fails to raise it in a motion
for summary judgment (or fails to appeal any decision denying summary
judgment).
Id. at pp. 1, 9.
According to defendant, his previous
counsel failed to raise the defense of qualified immunity, id. at p.
1, and failure to raise the defense “prior to trial in this matter,
borders on ineffective assistance of counsel.”
Defendant’s Reply, p.
6.
The Court is not persuaded that defendant has established good
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cause for his failure to comply with the scheduling order in this
case.
First, it is clear that defendant has been less than diligent in
attempting to meet the case schedule requirements.
There is no
indication that the January 8, 2008 Rules Infraction Board Hearing
audio tape was not available to defendant prior to the discovery
completion or dispositive motions deadlines; moreover, defendant could
have raised the defense of qualified immunity in his first two motions
for summary judgment, and the delay in deposing plaintiff’s expert
appears to have been at the request of defendant.
Reply, pp. 1-2.
See Defendant’s
Defendant should not now be rewarded with an
extension to the schedule at plaintiff’s expense, simply because he
failed to diligently seek discovery and raise arguments in prior
motions.
Second, defendant’s reliance on Ortiz is misplaced.
It is true
that “a party ordinarily cannot appeal an order denying summary
judgment after a full trial on the merits.”1
89.
Ortiz, 131 S.Ct. at 888-
It does not necessarily follow that qualified immunity must be
raised in the context of a motion for summary judgment or that the
defense is waived by a party’s failure to appeal an order denying
summary judgment on the issue.
As the United States Supreme Court
stated in Ortiz:
Once the case proceeds to trial, the full record developed in
court supersedes the record existing at the time of the
summary judgment motion. A qualified immunity defense, of
1
“Ortiz leaves open the possibility that cases ‘involving . . . only
disputes about the substance and clarity of pre-existing law’ may still be
considered.” Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 545 (6th Cir. 2012)
(quoting Ortiz, 131 S.Ct. at 892).
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course, does not vanish when a district court declines to rule
on the plea summarily.
The plea remains available to the
defending officials at trial; but at that stage, the defense
must be evaluated in light of the character and quality of the
evidence received in court.
Ortiz, 131 S.Ct. at 889.
In short, defendant will be permitted to
raise the defense of qualified immunity at trial and fully develop the
record.
Defendant will therefore not be prejudiced by the denial of
Defendant’s Motion for Leave.
For the forgoing reasons, Defendant’s Motion for Leave, Doc. No.
158, is DENIED.
Defendant’s Motion to Stay, Doc. No. 160, which seeks
a stay of the case schedule pending resolution of Defendant’s Motion
for Leave, is DENIED as moot.
s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
November 13, 2012
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