United States District Court, S.D. Ohio, Western Division
LAWRENCE R. BURFITT, Plaintiff,
LINNEA MAHLMAN, et al., Defendants.
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
an inmate at the Southern Ohio Correctional Facility
("SOCF") proceeding pro se, brings this civil
rights action under 42 U.S.C. § 1983 alleging violations
of his constitutional rights by prison employees. This matter
is before the Court on plaintiffs amended complaint (Doc.
18), which the Court construes as plaintiffs third motion for
leave to amend his complaint.
filed his initial complaint in this matter in July 2016.
(See Docs. 1, 14). On October 6, 2016, plaintiff
filed a motion to amend his complaint. (Doc. 6). He filed a
second motion to amend the complaint on October 21, 2016.
(Doc. 10). On November 4, 2016, the Court granted plaintiff
leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (Doc. 13). The same day, the undersigned
entered an Order and Report and Recommendation that granted
plaintiffs first and second motions to amend the complaint
and, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b), screened the allegations in the complaint and the
amendments to determine whether the complaint, or any portion
of it, should be dismissed because it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted. (Doc. 15).
initial complaint and the first and second proposed
amendments, plaintiff alleged that defendants Oppi and
Mahlman are liable for their roles in denying and/or
disregarding his complaints about the use of excessive force
at SOCF. Plaintiff specifically alleged that the defendants
improperly denied his request to preserve a video recording
of an incident that occurred at the prison on May 6, 2016,
wherein plaintiff was allegedly harassed and threatened by a
group of SOCF correctional officers in retaliation for his
having filed complaints about two off-camera beatings in 2015
and other incidents of mistreatment by prison staff.
(See Doc. 14 at 5-6). In the first and second
amendments, plaintiff further alleged that defendant Sparks
is also liable for denying and ignoring his complaints about
the use of excessive force at SOCF. (See Docs. 6,
undersigned recommended that plaintiffs initial complaint
(Doc. 14) as amended (Docs. 6, 10) be dismissed with
prejudice for failure to state a claim because plaintiff has
no federal constitutional right to an effective grievance
procedure. (Doc. 15 at 5, 7). Further, the undersigned noted
"that the doctrine of respondeat superior does
not apply in § 1983 lawsuits to impute liability onto
supervisory personnel." (Id. at 6). Thus, the
undersigned concluded that, [i]n the absence of any
allegations that defendants Mahlman, Oppi or Sparks directly
participated in any of the alleged instances of misconduct
that gave rise to plaintiffs complaints to them, any claim
against those defendants in their supervisory capacity for
failing to investigate or take corrective action is simply
insufficient to state ... an actionable § 1983
November 17, 2016, plaintiff filed a response to the Order
and Report and Recommendation. (Doc. 17). In his response,
plaintiff stated that he "has no objections to the
magistrates [Report and Recommendation]." (Id.
at 2). However, while the Order and Report and Recommendation
was pending with the District Court, plaintiff filed a notice
of appeal from the Order and Report and Recommendation. (Doc.
20). The Sixth Circuit dismissed plaintiffs appeal because
any review of the Order and Report and Recommendation lies
with the District Court. (Doc. 23). The Order and Report and
Recommendation remains pending before the district judge.
plaintiff filed the instant proposed amended complaint on
December 8, 2016. (Doc. 18). In general, plaintiff continues
to allege that defendants Mahlman, Oppi, and Sparks failed to
properly respond to his grievances and/or failed to
adequately supervise SOCF correctional officers. (See
Id. at 5, 7, 9). However, plaintiff also now alleges
that on May 6, 2016, he got into an argument with defendant
Oppi, during which he spit on defendant Oppi. (Id.
at 5). Plaintiff alleges that defendant Oppi ordered
correctional officers to attack plaintiff off camera the next
day and that Oppi watched the attack from off camera and said
"got you now nigger." (Id.).
Rule of Civil Procedure 15(a) governs amendments to the
pleadings. A complaint may be amended once as a matter of
course within twenty-one days of serving it. Fed.R.Civ.P.
15(a)(1)(A). Any further amendment is permitted "only
with the opposing party's written consent or the
court's leave." Fed.R.Civ.P. 15(a)(2). "In
deciding whether to grant a motion to amend, courts should
consider undue delay in filing, lack of notice to the
opposing party, bad faith by the moving party, repeated
failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of
amendment." Brumbalough v. Camelot Care Ctrs.,
Inc., 472 F.3d 996, 1001 (6th Cir. 2005).
plaintiffs amended complaint, which is construed as his third
motion for leave to amend, should be denied because of the
undue delay in filing, failure to cure deficiencies by
previous amendments, and futility. First, as to plaintiffs
continued allegations that defendants Mahlman, Oppi, and
Sparks failed to properly respond to his grievances and/or
failed to adequately supervise SOCF officers, the proposed
amended complaint is futile for the reasons stated in the
November 4, 2016 Order and Report and Recommendation.
(See Doc. 15 at 5-7). As to the new allegations
against defendant Oppi, plaintiff never alleged any direct
participation by Oppi in his initial complaint, his first or
second amendments, or his response to the November 2016 Order
and Report and Recommendation. (See generally Docs.
6, 10, 14, 17). Plaintiff has not provided any explanation
for his failure to include these allegations in his prior
filings. Permitting plaintiff to amend his complaint at this
juncture after his repeated failure to include this new claim
against defendant Oppi would only serve to further delay the
resolution of this case. Therefore, given plaintiffs
"undue delay in filing" these allegations
concerning defendant Oppi and plaintiffs "repeated
failure to cure deficiencies by previous amendments, "
he should not be permitted to amend his complaint to add this
claim. Brumbalough, 472 F.3d at 1001.
based on the foregoing, it is RECOMMENDED that plaintiffs
amended complaint construed as his third motion for leave to
amend (Doc. 18) be DENIED.
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after being served with
a copy of the recommended disposition, a party may serve and
file specific written objections to the proposed findings and
recommendations. This period may be extended further by the
Court on timely motion for an extension. Such objections
shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendation is based in
whole or in part upon matters occurring on the record at an
oral hearing, the objecting party shall promptly arrange for
the transcription of the record, or such portions of it as
all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections WITHIN 14 DAYS ...