Mobley III v. Davis et al

Filing 56

MEMORANDUM OPINION AND ORDER DENYING 34 MOTION for Entry of Default against Leroy Grimes, Demetria Oliver, Unk Ramirez, GRANTING 54 MOTION for Extension of Time for Filing Plaintiff's Opposition to Defendants Summary Judgment, GRANTING 48 MOTION to Seal MSJ and Exhibits A-C, DENYING 40 MOTION for Leave to File Amended and Supplemental Pleading, DENYING 29 MOTION for Temporary Restraining Order, DENYING AS MOOT 33 MOTION for Interrogatories and Request for the full names and rank of defendants., DENYING 24 MOTION to Supplement Complaint as to 1 Complaint, DENYING 28 MOTION for Leave to File Amended Complaint (Signed by Judge George C Hanks, Jr) Parties notified. Copy mailed to Jacqueline Lee Haney via reg. mail. (dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MELVIN L MOBLEY III,
TDCJ # 01502681,
Plaintiff,
VS.
JOSEPH DAVIS, et al,
Defendants.

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December 20, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 3:18-CV-0039

MEMORANDUM OPINION AND ORDER
Plaintiff Melvin L. Mobley III, an inmate at the Texas Department of Criminal
Justice–Correctional Institutions Division, proceeds pro se and has been granted leave to
proceed in forma pauperis. Mobley filed this civil rights action alleging that Joseph
Davis, Leeroy Grimes, John Doe # 1, and John Doe # 2 subjected him to an
unconstitutional use of force at Hospital Galveston on August 1, 2017. He further alleged
that “Sergeant Ramirez” and Demetria Oliver were bystanders and failed to intervene.
The Court ordered an answer from four Defendants: Joseph Davis, Leeroy Grimes,
Regina Laday,1 and Demetria Oliver (Dkt. 27).
Defendants Davis and Laday have answered and filed a motion for summary
judgment. Plaintiff’s response to the summary judgment motion is due on December 19,
2018. Defendants Grimes and Oliver have not appeared in this suit, despite the order to
answer.

1

Regina Laday was identified in the complaint as “Sergeant Ramirez” but married and
changed her name since the complaint was filed (Dkt. 49, at 1 n.1).
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Plaintiff has filed multiple motions, seeking leave to amend or supplement his
pleadings, injunctive relief, discovery, a default judgment, and an extension of time. The
Court addresses each motion below.
Motions to Supplement or Amend Pleadings (Dkt. 24, Dkt. 28, Dkt. 40).
Plaintiff seeks the Court’s leave to amend or supplement his pleadings to bring claims
regarding delayed or denied medical care for his injuries resulting from Defendants’
alleged use of force. See, e.g., Dkt. 24, at 1 (“I had numerous problems of denials,
delays, and interferences regarding tests x-ray/MRI at Hosp[ital] Gal[veston] for my
cervical spine. After numerous [grievances] and filing my lawsuit, finally March 22,
2018, I had the MRI test, but I have not been back to Hosp[ital] Gal[veston] for a followup to ortho-spine regarding the results or to implement an appropriate treatment”).
Plaintiff seeks leave to add Bryan Hicks, nursing manager at the University of Texas
Medical Branch (“UTMB”) as a defendant in this suit, and to bring claims regarding
inadequate medical care under the Eighth Amendment, the Americans with Disabilities
Act, and the Rehabilitation Act (Dkt. 28).
Rule 15(a)(2) states that a court should grant leave to amend the pleadings “when
justice so requires.” FED. R. CIV. P. 15(a)(2). In deciding whether to grant leave to file
an amended pleading, the district court “should consider factors such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party, and futility of
amendment.” In re Am. Intern. Refinery, Inc., 676 F.3d 455, 466 (5th Cir. 2012) (quoting
In re Southmark, 88 F.3d 311, 315 (5th Cir. 1996)).
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If the district court lacks a

“substantial reason” to deny leave, its discretion is not broad enough to permit denial.
Mayeaux v. Louisiana Health Serv. and Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004).
Rule 15(d) governs supplemental pleadings regarding “any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.”
FED. R. CIV. P. 15(d). The same factors considered for a motion under Rule 15(a) are
relevant under Rule 15(d). See Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149,
1194 (5th Cir. 1982) (citation omitted), vacated on unrelated grounds by 460 U.S. 1007
(1983); Lowrey v. Beach, 708 F. App’x 194, 195 (5th Cir. 2018).
Plaintiff’s complaint (Dkt. 1) claims that on August 1, 2017, six officers
participated in, or failed to prevent, an unconstitutional use of force. The complaint did
not bring claims for denial of or delay in medical care. Plaintiff’s recent allegations
regarding medical care are separate from his original claims in this suit. Moreover, the
claims would involve additional defendants, because Hicks is not a defendant in this
action. Adding new claims and defendants would prejudice the Defendants who already
have appeared and filed for summary judgment.
Because the new allegations are not germane to Mobley’s original claims and
would unduly prejudice the opposing parties, leave to file amended or supplement
pleadings under Federal Rule of Civil Procedure 15 is denied.

Mobley may elect to

bring a separate lawsuit to pursue any new claims regarding medical treatment.
Plaintiff also seeks leave to amend in order to correct the names of certain
Defendants, including those previously identified as John Doe (Dkt 40). In particular,
Plaintiff states that Leeroy Grimes should be Eric Grimes; that John Doe # 1 should be
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Eric Hunter; and that John Doe # 2 should be DeAndre Jackson.2 The Court will instruct
the Clerk to correct the docket in this case so as to reflect the names submitted by
Plaintiff. See Dkt 40.3
Motion for Emergency Injunctive Relief (Dkt. 29). Plaintiff

has

filed

for

emergency injunctive relief (Dkt. 29) seeking to enjoin Hicks’ alleged actions in denying
or delaying Plaintiff’s medical care. Because Hicks is not a defendant in this action,
Plaintiff’s motion for emergency injunctive relief against Hicks is denied.
Motion for Default (Dkt. 34).

Plaintiff requests default judgment against

Defendants Eric Grimes (originally sued as Leeroy Grimes) and Demetria Olivier
because neither defendant has answered or filed a dispositive motion. Defendants Davis
and Laday, who were present at the same incident involving an alleged use of force
against Plaintiff, have answered and filed a joint summary judgment motion, which is
currently pending.
Plaintiff’s motion for default judgment is denied at this time. However, within
thirty (30) days the Office of the Attorney General is ordered to either (1) file an answer
to Plaintiff’s complaint on behalf of Defendants Grimes and Olivier or (2) show cause
why no answer has been filed. If appropriate, Defendants may seek leave to amend their
pending summary judgment motion.
2

As stated above, the party originally named as “Unk. Ramirez” or “Regina Ramirez” is
Regina Laday, who has appeared in this lawsuit and filed a summary judgment motion.
3

Earlier in the litigation, Plaintiff had filed a motion for interrogatories and request for the
full names and rank of defendants (Dkt. 33). Because Plaintiff’s statements in Dkt. 40 indicate
that Plaintiff has received the information he sought, the motion will be denied as moot.

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After the Office of the Attorney General files the required documents, Plaintiff
may re-urge his motion for default judgment, if warranted.
Plaintiff’s Motion to Extend Time (Dkt. 54). In light of the rulings in this
opinion, Plaintiff’s motion to extend time to respond to Defendants’ summary judgment
motion is granted. Plaintiff’s response will be due within sixty (60) days of the date of
this order.
For the reasons stated above the Court ORDERS as follows:
1.

The Clerk is INSTRUCTED to correct the docket to name the following

Defendants: (1) Eric Grimes in place of Leeroy Grimes; (2) Eric Hunter in place of John
Doe # 1; (3) DeAndre Jackson in place of John Doe # 2; and (4) Regina Laday in place of
Sergeant Ramirez. In all other respects, Plaintiff’s motions to supplement or amend his
pleadings (Dkt. 24, Dkt. 28, Dkt. 40) are DENIED.
2.

Plaintiff’s motion for temporary restraining order or preliminary injunction

(Dkt. 29) is DENIED.
3.

Plaintiff’s motion for interrogatories and request for the full names and

rank of defendants (Dkt. 33) is DENIED as moot.
4.

Plaintiff’s motion for entry of default (Dkt. 34) is DENIED at this time.

However, within thirty (30) days of this order, the Office of the Attorney General is
ORDERED to either (1) file an answer to Plaintiff’s complaint on behalf of Defendants
Grimes and Olivier or (2) show cause why no answer has been filed.
5.

Defendants’ motion to seal (Dkt. 48) is GRANTED because the summary

judgment motion contains Plaintiff’s confidential information.
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6.

Plaintiff’s motion to extend time (Dkt. 54) is GRANTED. Plaintiff must

file his response to Defendants’ summary judgment motion (Dkt. 49) within sixty (60)
days of the date of this order.
The Clerk will provide a copy of this order to the parties and to Jacqueline
Lee Haney, Assistant Attorney General for the State of Texas, Law Enforcement
Defense Division, P.O. Box 12548, Austin, Texas 78711-2548, by fax [phone])
or electronic means.
SIGNED at Galveston, Texas, this 20th day of December, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

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