United States District Court, S.D. Ohio, Western Division
ROY A. DURHAM, JR., Plaintiff,
ROB JEFFREYS, et al., Defendants.
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
an inmate at the Toledo Correctional Institution proceeding
pro se and in forma pauperis, brings this prisoner
civil rights action under 42 U.S.C. § 1983 alleging
violations of his constitutional rights by employees of the
Warren Correctional Institution ("WO"). This matter
is before the Court on plaintiffs second motion for leave to
file a third amended complaint. (Doc. 121). For the following
reasons, the undersigned recommends that plaintiffs motion be
case, which has been pending for nearly four years, has a
long and complicated history. As background, plaintiff filed
his initial complaint in this matter in April 2013 naming
eight WCI employees as defendants. (Doc. 1). Following the
Court's review of the complaint pursuant to 28 U.S.C.
§ 1915A, the undersigned recommended that plaintiffs
claims against three defendants be dismissed for failure to
state an actionable claim for relief under § 1983. (Doc.
9). Plaintiff subsequently moved for and was granted leave to
amend his complaint to provide full names of the defendants
and to include additional defendants, facts, and claims.
(Docs. 13, 14). On August 1, 2013, plaintiff filed a 339-page
amended complaint against 99 defendants. (Doc. 19). The
undersigned found that this amended complaint did not contain
a "short and plain statement of the claim" as
required by Fed.R.Civ.P. 8, but granted plaintiff leave to
file a second amended complaint not to exceed 20 pages in
length. (Doc. 22).
submitted his 20-page second amended complaint on September
9, 2013. (Doc. 28). In November 2013, the undersigned
recommended that certain portions of plaintiff s second
amended complaint be dismissed for failure to state a claim.
(Doc. 35). The Court adopted the November 2013 Report and
Recommendation on January 8, 2014. (Doc. 40).
14, 2014, the undersigned entered an order regarding
plaintiffs failure to effect service of process on 21 of the
defendants named in the second amended complaint. (Doc. 54).
Plaintiff was ordered to submit copies of his second amended
complaint and summons form for each defendant by
June 13, 2014. (Doc. 54 at 5). Plaintiff failed to comply
with this Order and on August 20, 2014, the Court entered an
order requiring plaintiff to show cause why his claims
against the unserved defendants should not be dismissed for
failure of service. (Doc. 60).
response to the Court's show cause order was not
well-taken. Nevertheless, in light of plaintiff s pro se
status, the Court granted plaintiff a further extension of
time to submit completed summons forms and copies of his
second amended complaint for each of the unserved defendants
by October 30, 2014. (Doc. 66). Plaintiff did not submit the
summons forms and copies of his second amended complaint as
ordered. Instead, he filed a motion for leave to file yet
another amended complaint. (Doc. 68). On November 17, 2014,
plaintiff submitted copies of a proposed third amended
complaint and summons forms for some, but not all of the
previously named and unserved defendants and for individuals
not previously named as defendants. (Doc. 68-1). Further, at
forty pages, the proposed third amended complaint filed in
November 2014 did not comply with the Court's prior order
limiting the length of plaintiff s complaint to 20 pages.
(See Doc 22).
November 26, 2014, the undersigned recommended denial of
plaintiff s motion for leave to file a third amended
complaint. (Doc. 69). The undersigned explained that
"[n]either the Court nor the defendants should have to
guess at the ever-changing nature of plaintiff s claims or
the identity of the individuals who may ultimately be liable
for such claims." (Id. at 5). Additionally, due
to plaintiffs repeated failure to submit summons forms for
unserved defendants, the undersigned recommended dismissal of
the unserved defendants for failure of service of process.
(Id. at 5-6). The Court overruled plaintiffs
objections, adopted the November 2014 Report and
Recommendation, denied plaintiffs motion for leave to file a
third amended complaint, and dismissed the unserved
defendants for failure of service of process. (Doc. 75). The
Court found that "[t]he record reflects that Plaintiff
has not diligently prosecuted this action and granting
further leave to amend would unduly prejudice
Defendants." (Id. at 1 n.1). Accordingly,
defendants Rob Jeffreys, Michael Sheets, Justin Johnson,
Joseph Little, Adam Keesler, and Justin Reese were the only
defendants remaining in the action. (Id. at 2).
Plaintiff moved for reconsideration, which the Court denied.
(Docs. 77, 89).
defendants moved for judgment on the pleadings on plaintiffs
second amended complaint on the basis that plaintiff failed
to exhaust his administrative remedies prior to filing the
second amended complaint and had not alleged a constitutional
violation. (Doc. 65). Plaintiff responded and filed numerous
exhibits. (See Docs. 81, 83, 84, 85). In May 2015,
the undersigned converted defendants' motion into one for
summary judgment and ordered supplemental briefing to
identify the specific pages in the nearly 700 pages of
documents plaintiff had submitted which supported or negated
each party's arguments concerning whether plaintiff
exhausted his administrative remedies. (Doc. 90). After the
deadline for supplemental briefing expired, the undersigned
recommended granting summary judgment to defendants because
plaintiff failed to exhaust his administrative remedies and
had not shown that defendants or other prison officials had
thwarted his exhaustion efforts. (Doc. 93). In September
2015, the Court overruled plaintiffs objections, adopted the
Report and Recommendation, and granted summary judgment to
defendants. (Doc. 102).
appealed. (Doc. 104). In September 2016, the Sixth Circuit
vacated this Court's judgment and remanded for further
proceedings. (Doc. 108). Specifically, the Sixth Circuit held
that this Court had erred by not considering Swies v.
Andison, 678 F.3d 452 (6th Cir. 2012), when analyzing
the issue of whether plaintiff had exhausted his
administrative remedies. (Doc. 108 at 4-9).
that plaintiffs case has been remanded to this Court, he has
moved yet again for leave to file a third amended complaint.
(Doc. 121). Plaintiff has attached a 28-page proposed amended
complaint. (Doc. 121-3). Plaintiff asserts that because he
has been educated throughout the course of these proceedings,
he now has a better understanding of pleading requirements
than he did when he filed his earlier pleadings.
(See Doc. 121 at 2-4). He asserts that an amendment
is necessary "to avoid further prejudice, and to assert
claims that arose out of the conduct that Plaintiff attempted
to set out in the original, and/or first amended complaint
with discussion of related defendants from subsequent
institutions." (Id. at 4-5).
party may amend its pleading once as a matter of course
within ... 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b). .,
." Fed.R.Civ.P. 15(a)(1)(B). "In all other cases, a
party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires." Fed.R.Civ.P. 15(a)(2). A district court has
discretion to deny a motion to amend a complaint, but must
state a basis for such a denial. Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir.
2000). The Court must consider several factors in determining
whether to permit an amendment: (1) undue delay in filing;
(2) lack of notice to the opposing party; (3) bad faith by
the moving party; (4) repeated failure to cure deficiencies
by previous amendments; (5) undue prejudice to the opposing
party; and (6) futility of the amendment. Coe v.
Bell, 161 F.3d 320, 341-42 (6th Cir. 1998) (citing
Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.
plaintiffs second motion for leave to file a third amended
complaint should be denied. He filed his initial complaint in
this action in April 2013 and was twice granted leave to
amend. Plaintiff has not explained his repeated failure to
cure deficiencies by previous amendments beyond his assertion
that he now has a better education in legal matters. While
the Court is cognizant that plaintiff is proceeding pro se in
this matter and does not have the benefit of a formal legal
education, this does not excuse his earlier failure to cure
deficiencies in his complaint. See McNeil v. United
States, 508 U.S. 106, 113 (1993) ("[W]e have never
suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who
proceed without counsel.").
plaintiff filed his second motion for leave to file a third
amended complaint nearly four years after he initiated this
action. This undue delay in filing and the undue prejudice to
defendants that would result from allowing plaintiff to
submit a new pleading at this late stage in the proceedings