Enyart v. Karnes et al

Filing 69

ORDER REPORT AND RECOMMENDATION: The Motion to Strike Plaintiffs Amended Complaint Doc. No. 60, is GRANTED. Accordingly, Doc. No. 57 is ORDERED STRICKEN from the record. Plaintiffs Motion for Leave to File an Ame nded Complaint, Doc. No. 42, is GRANTED in part and DENIED in part. The motion is GRANTED as to Deputy Daniel Thacker and Corporal Mandy Miller, but DENIED as to Nurse Kathy Hartlaub and Chief Deputy Mark J. Barrett. Plaintiffs Motion for Enlargement of Time, Doc. No. 51, is GRANTED. It is RECOMMENDED that plaintiffs motion for entry of default, Doc. No. 54, be DENIED. ( Objections to R&R due by 11/29/2010). Signed by Magistrate Judge Norah McCann King on 11/10/10. (rew)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION RICHARD E. ENYART, JR., Plaintiff, vs. SHERIFF JIM KARNES, et al., Defendants. ORDER and REPORT AND RECOMMENDATION Plaintiff, a state inmate proceeding without the assistance of counsel, brings this action under 42 U.S.C. § 1983, alleging that he was not protected from attack by other inmates and was denied dental care in contravention of his right to due process while detained in the Franklin County jail. pending motions. I. BACKGROUND Plaintiff initiated this action on August 6, 2009, by the filing of the original Complaint, which named as defendants Sheriff Jim Karnes and two "John Does." Complaint, Doc. No. 2. Thereafter, This matter is before the Court on several Civil Action 2:09-CV-687 Judge Smith Magistrate Judge King

plaintiff moved for leave to amend, seeking to identify Deputy Dan Waldren as the "John Doe 1" referred to in the Complaint. 10. Doc. No.

Because no answer had yet been filed, plaintiff's motion was Order, Doc. No. 13. Plaintiff did not thereafter actually

granted.

file an amended complaint asserting claims against Deputy Waldren; however, his motion for leave to amend, Doc. No. 10, specifically stated that he intended that paragraphs in the original Complaint

relating to defendant "John Doe 1" be asserted against defendant Waldren. Id.

On November 3, 2009, plaintiff filed a second motion for leave to amend the Complaint, seeking to add "Franklin County" as a party defendant. Doc. No. 16. The Court granted that motion as unopposed.

Order, Doc. No. 25.

Again, plaintiff did not file an actual amended However, in his

complaint identifying Franklin County as a defendant.

motion, Doc. No. 16, plaintiff noted that he had identified Franklin County in the Complaint's caption, but had neglected to specifically

identify it as a party defendant in the text of the Complaint. The docket reflects that Franklin County was served by the United States Marshal Service with a copy of the original Complaint, a summons and a copy of the order granting leave to join it as a defendant on March 16, 2010. See Clerk's Notation of March 4, 2010;

Doc. No. 40. Deputy Waldren was served by the United States Marshal Service with a copy of the original Complaint, a summons and a copy of the order granting leave to join him as a defendant on March 31, 2010. See Clerk's Notation of February 25, 2010; Doc. No. 41. However, no answer or other response on behalf of these defendants has been filed. Thereafter, plaintiff filed a third motion for leave to amend the complaint, seeking to add as defendants four additional individuals. Doc. No. 42. Notwithstanding defendant Karnes's opposition to this

motion, Doc. No. 47, plaintiff filed, without leave of Court, an amended complaint effecting these additions. No. 57. Through a series of motions pending before this Court, the parties address, inter alia, whether plaintiff's original Complaint 2 Amended Complaint, Doc.

was ever properly amended and whether plaintiff should be permitted to join the four additional defendants; indeed, the parties disagree on the identities of the defendants actually joined in the action. These matters are addressed infra. II. Motion for Leave to File an Amended Complaint, Doc. No. 42, and Motion to Strike Plaintiff's Amended Complaint Filed August 16, 2010, Doc. No. 60 The record in this action is unclear whether Deputy Waldren and Franklin County have been properly joined as defendants. Although

plaintiff did not file an actual amended complaint after having been granted leave to join these persons, the Court observes that plaintiff's motions for leave to amend made clear that plaintiff intended to name these persons as defendants to the allegations asserted in the original Complaint. Under the particular

circumstances of this case and construing plaintiff's filings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the Court concludes that Deputy Waldren and Franklin County are proper defendants to this litigation. The Court now considers whether plaintiff's third and most recent motion for leave to amend, Doc. No. 42, should be granted. seeks to add as defendants four additional individuals: Plaintiff

Deputy Daniel

Thacker, Corporal Mandy Miller, Nurse Kathy Hartlaub and Chief Deputy Mark J. Barrett. Doc. No. 47. Id. Defendant Karnes opposes plaintiff's motion.

See also Motion to Strike Plaintiff's Amended Complaint

Filed August 16, 2010, Doc. No. 60. Rule 15(a) of the Federal Rules of Civil Procedure provides that "[t]he court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). 3 "[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) (quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)). However, a court "may deny a

plaintiff leave to amend his or her complaint. . . when the proposed amendment would be futile." Cir. 2006). Kottmyer v. Maas, 436 F.3d 684, 692 (6th

"A proposed amendment is futile if the amendment could Rose v. Hartford

not withstand a Rule 12(b)(6) motion to dismiss."

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing Thiokol Corp. v. Department of Treasury, Revenue Div., 987 F.2d 376, 382-83 (6th Cir. 1993)). Plaintiff explains that Deputy Daniel Thacker is the "John Doe 2" identified in several paragraphs in the original Complaint. 68, p. 6. Doc. No.

After reviewing these allegations, the Court cannot say

that a claim against Deputy Daniel Thacker would not survive a motion to dismiss. Therefore, plaintiff's claim against Deputy Daniel

Thacker may proceed. Plaintiff also seeks to join Corporal Mandy Miller as the "female officer" referenced in paragraph 13 of the original Complaint. Doc. No. 68, p. 6; Complaint. That paragraph alleges that the "female

officer in the infirmary" conditioned plaintiff's request for protective custody on his release of liability, which plaintiff characterizes as a "coercive tactic." Complaint, ¶13. At this

juncture, the Court cannot conclude that the proposed amendment in this regard would be futile. Therefore, plaintiff will be permitted

to amend the Complaint to join Corporal Mandy Miller as a defendant. However, plaintiff does not assert any allegation of wrongdoing 4

by proposed defendant Nurse Kathy Hartlaub, whom plaintiff identifies as the nurse who first treated plaintiff after the alleged assault. The original Complaint makes no reference to such an individual and neither plaintiff's motion for leave to amend nor plaintiff's Amended Complaint, Doc. No. 57, even suggests a colorable claim against Nurse Kathy Hartlaub. Therefore, an amendment to assert a claim against Nurse Kathy Hartlaub would be futile; plaintiff's request to add her as a defendant is denied. Finally, plaintiff seeks to add Chief Deputy Mark J. Barrett as a defendant, but does not allege that Deputy Barrett was personally involved in any of the events giving rise to this litigation. No. 68, p. 6. Doc.

Instead, plaintiff seeks to add Deputy Barrett because

he "was discovered to be in charge of the day to day operations at" Franklin County Corrections Center. Id. See also Amended Complaint.

However, "[b]ecause § 1983 liability cannot be imposed under a theory of respondeat superior, proof of personal involvement is required for a supervisor to incur personal liability." Grinter v. Knight, 532

F.3d 567, 575 (6th Cir. 2008) (quoting Miller v. Calhoun County, 408 F.3d 803, 817 n.3 (6th Cir. 2005) (internal quotation marks omitted)). See also Jackson v. Gill, 92 Fed. Appx. 171, 173 (6th Cir. 2004) (stating that supervisory liability under 42 U.S.C. § 1983 "must be based on something more than the right to control the actions and conduct of subordinate employees") (citing Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). Accordingly, any claim against Deputy

Mark J. Barrett would be futile; plaintiff's request to add him as a defendant is denied. Turning to defendant Karnes's motion to strike the Amended 5

Complaint, Doc. No. 60, the Court notes that the unauthorized Amended Complaint names as defendants, inter alios, Nurse Kathy Hartlaub and Chief Deputy Mark J. Barrett. See Doc. No. 57, p. 2. Because these

two individuals are not proper defendants for the reasons discussed supra, the Motion to Strike Plaintiff's Amended Complaint Filed August 16, 2010, Doc. No. 60, is GRANTED. ORDERED STRICKEN from the record. In light of the above, Plaintiff's Motion for Leave to File an Amended Complaint, Doc. No. 42, is GRANTED in part and DENIED in part. The motion is GRANTED as to Deputy Daniel Thacker and Corporal Mandy Miller, but DENIED as to Nurse Kathy Hartlaub and Chief Deputy Mark J. Barrett. In order to clarify the present record, plaintiff is ORDERED to file, within fourteen (14) days, a new amended complaint that expressly identifies Sheriff Karnes, Deputy Waldren, Deputy Thacker, Corporal Miller and Franklin County as defendants and which asserts all of plaintiff's claims and allegations against each of these defendants. Plaintiff must also submit a copy of this anticipated amended complaint, a completed summons and a Marshal service form for all defendants except defendant Karnes. Upon plaintiff's submission Accordingly, Doc. No. 57 is

of those documents, the United States Marshal Service is DIRECTED to effect service of process upon all defendants except defendant Karnes. These defendants may have forty-five (45) days after service of process to respond to the anticipated amended complaint. III. Plaintiff's Declaration for Entry of Default, Doc. No. 54 Plaintiff has moved for an entry of default against defendant 6

Franklin County.

Doc. No. 54.

Defendant Karnes opposes plaintiff's

motion, arguing that Franklin County was never properly joined as a defendant because, inter alia, plaintiff never filed an amended complaint naming it as a defendant. Doc. No. 56.

Default judgment "is a drastic step which should be resorted to only in the most extreme cases." United Coin Meter Co. v. Seaboard Federal courts

Coastline R.R., 705 F.2d 839, 845 (6th Cir. 1983). instead favor trials on the merits. 617, 620 (6th Cir. 1990).

See Berthelsen v. Kane, 907 F.2d

The United States Court of Appeals for the

Sixth Circuit has counseled that a trial court's discretion should be shaped by consideration of possible prejudice to the plaintiff, the existence of a meritorious defense and an articulation of a "credible explanation for the delay [in answering] that does not exhibit disregard for the judicial proceedings." Shepard Claims Service, Inc.

v. William Darrah & Associates, 796 F.2d 190, 194 (6th Cir. 1986). It is evident from the procedural history recounted supra that the record in this case was ambiguous and the identity and status of the defendants properly joined in the action is unclear. Moreover,

there is no indication that a delay in filing an answer resulted "in the loss of evidence, increased difficulties in discovery, or greater opportunities for fraud and collusion." INVST Financial Group, Inc.

v. Chem-Nuclear Systems, Inc., 815 F.2d 391, 398 (6th Cir. 1987). Therefore, this Court concludes that defendant Franklin County's failure to file an answer does not warrant entry of default and default judgment. IV. Plaintiff's Motion for Enlargement of Time, Doc. No.51 Plaintiff asks to extend the discovery deadline and the date for 7

filing dispositive motions. Doc. No. 51. opposed plaintiff's motion.

Defendant Karnes has not

In light of the anticipated filing of an amended complaint, which will clarify and add additional parties as defendants, plaintiff's motion to extend these case deadlines, Doc. No. 51, is GRANTED. Court will establish new deadlines once all defendants have been served with the anticipated amended complaint.1 WHEREUPON plaintiff's Motion for Leave to File an Amended Complaint, Doc. No. 42, is GRANTED in part and DENIED in part. The Motion to Strike Plaintiff's Amended Complaint filed August 16, 2010, Doc. No. 60, is GRANTED. ORDERED STRICKEN. The Amended Complaint, Doc. No. 57, is The

Plaintiff is ORDERED to file, within fourteen (14)

days, a new amended complaint that expressly identifies Sheriff Karnes, Deputy Waldren, Deputy Thacker, Corporal Miller and Franklin County as defendants and which asserts all of plaintiff's claims and allegations against each of these defendants. Plaintiff must also submit a copy of this anticipated amended complaint, a completed summons and a Marshal service form for all defendants except defendant Karnes. Upon plaintiff's submission of those documents, the United

States Marshal Service is DIRECTED to effect service of process upon all defendants except defendant Karnes. These defendants may have

forty-five (45) days after service of process to respond to the anticipated amended complaint.

In granting this request to extend the discovery deadline, the Court expresses no opinion as to the merits of plaintiff's separate discovery motion based on Fed. R. Civ. P. 56(f), Doc. No. 61. That motion will be addressed in a separate order.

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Plaintiff's Motion for Enlargement of Time, Doc. No. 51, is GRANTED . The Court will establish new discovery completion and

dispositive motions filing dates after the newly joined defendants have been served with process. It is RECOMMENDED that plaintiff's motion for entry of default, Doc. No. 54, be DENIED. If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b). 28

Response to objections must

be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

November 9, 2010

s/Norah McCann King Norah McCann King United States Magistrate Judge

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