Moore v. Oklahoma City, City of et al

Filing 74

ORDER finding that plaintiff has not asserted an excessive force claim against defendant Godsil and that plaintiff should not be granted leave to file an amended complaint to assert an excessive force claim against defendant Godsil (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 2/2/2012. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WESLEY T. MOORE,
Plaintiff,
vs.
CITY OF OKLAHOMA CITY and
DANIEL GODSIL,
Defendants.

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Case No. CIV-11-86-M

ORDER
In his response to defendant Daniel Godsil’s Motion for Summary Judgment, plaintiff
contended, in part, that defendant Godsil’s motion should be denied because defendant Godsil used
unnecessary force after plaintiff’s arrest in violation of plaintiff’s constitutional rights under the
Fourth Amendment. Defendant Godsil contends that plaintiff did not assert an excessive force claim
against defendant Godsil in his Petition. Accordingly, in response to plaintiff’s argument contained
in his response, which defendant Godsil considers an implied motion to amend, on January 13, 2012,
defendant Godsil filed a “Response to Plaintiff Moore’s Motion to Amend His Complaint to Add
an Excessive Force Claim against Godsil.” On January 20, 2012, plaintiff filed his reply to
defendant Godsil’s response.

Based upon the parties’ submissions, the Court makes its

determination on this matter.
Plaintiff contends that he asserted an excessive force claim against defendant Godsil in his
original Petition. Having carefully reviewed plaintiff’s Petition, the Court finds that plaintiff did not
assert an excessive force claim against defendant Godsil in his Petition. In his Second Cause of
Action, the cause of action asserted against defendant Godsil, plaintiff never mentions, specifically
or otherwise, excessive force at all; the only basis asserted in relation to plaintiff’s alleged violation

of his civil rights is defendant Godsil’s alleged false arrest/false imprisonment of plaintiff. Plaintiff
addresses the force used by defendant Godsil in his First Cause of Action, a negligence cause of
action asserted against defendant City of Oklahoma City. Specifically, plaintiff states that defendant
Godsil “arrested and imprisoned Plaintiff, negligently using unnecessary roughness handcuffing
Plaintiff too tight”. However, the Court finds that this language does not state a claim of excessive
force against defendant Godsil.
In his reply, plaintiff alternatively requests the Court to grant him leave to file an amended
complaint adding a claim of excessive force against defendant Godsil. Whether to grant leave to
amend is within the trial court’s discretion. Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462
(10th Cir. 1991). “Refusing leave to amend is generally only justified upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies
by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993). However, when a motion to amend is filed after the deadline set forth
in the Scheduling Order, as it is in the instant matter, the moving party must show good cause for
allowing the amendment out of time. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518 (10th Cir.
1990).
Having carefully reviewed the parties’ submissions, the Court finds that plaintiff has not
shown good cause for amending his complaint to assert a claim of excessive force against defendant
Godsil. Specifically, the Court finds that defendant Godsil would be unduly prejudiced if plaintiff
were allowed to file an amended complaint at this point in the litigation. In his response, defendant
Godsil states that because plaintiff was not asserting an excessive force claim, defendant Godsil’s
counsel made the decision that no expert was necessary in this case and, thus, did not retain an

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expert and that an expert would have been retained if an excessive force claim had been asserted.
Because the deadlines to submit expert witness lists and reports and to conduct discovery have
expired in this case, the Court finds that defendant Godsil would be unduly prejudiced if plaintiff
were allowed to file an amended complaint asserting a claim of excessive force against defendant
Godsil.
Accordingly, the Court FINDS that plaintiff has not asserted an excessive force claim against
defendant Godsil and that plaintiff should not be granted leave to file an amended complaint to
assert an excessive force claim against defendant Godsil.
IT IS SO ORDERED this 2nd day of February, 2012.

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