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Bonds v. University of Cincinnati Medical Center

United States District Court, S.D. Ohio, Western Division

August 24, 2017

TODD BONDS, Plaintiff,
v.
UNIVERSITY OF CINCINNATI MEDICAL CENTER, et al., Defendants.

          ORDER

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.

         Plaintiff brings this pro se action alleging violations of his rights by defendants the University of Cincinnati Medical Center (UCMC), UCMC security staff, UCMC security employee Mike Posey (collectively, "UCMC defendants'"), former Kentucky Attorney General (AG) John William "Jack" Conway, and "Two Unknown Kentucky State Police Officers" (KSP officers). This matter is before the Court on (1) the UCMC defendants' motion to dismiss the complaint for lack of jurisdiction and failure to state a claim upon which relief can be granted (Doc. 130), plaintiffs response in opposition (Doc. 135), and defendants' reply memorandum in support (Doc. 137); (2) defendant Conway's motion for a protective order (Doc. 132), plaintiffs response in opposition (Doc. 134), and defendant's reply in support (Doc. 138); (3) plaintiffs motion to strike defendant's motion for a protective order (Doc. 136) and defendant's response in opposition (Doc. 139); and (4) plaintiffs motion for leave to file a second amended complaint (Doc. 143), defendant Conway's response in opposition (Doc. 145), the KSP officers' response in partial opposition (Doc. 149), and plaintiffs replies in support of the motion (Docs. 146, 150).

         I. Background

         Plaintiff was granted leave to proceed in forma pauperis and filed the original complaint in this action on October 8, 2015. (Docs. 2, 3). The only defendants named in the original complaint are the UCMC defendants. Plaintiff alleges in the original complaint that on or about September 2, 2015, the UCMC defendants "engaged in several acts" that violated plaintiffs rights under the '"UCMC Patient Bill of Rights" and worsened his condition, "causing [plaintiff] mental [and] physical anguish." (Doc. 3 at 3). Specifically, plaintiff alleges that the UCMC defendants refused to allow him to participate in his care plan as prescribed by his primary care doctor and refused to call plaintiff by his requested title in violation of the UCMC Patient Bill of Rights. (Id.). Plaintiff also alleges that defendant Posey threatened him with physical harm, called him names, and disrespected him "in an attempt to air a 20 year grievance" between plaintiff and Posey. (Id.). Plaintiff seeks injunctive relief in the form of "recertification and enforcement of [the] Patient Bill of Rights" and the termination of Posey, punitive damages totaling at least $5 million, and any other relief specified by the Court. (Id. at 4).

         Plaintiff sought leave to file an amended complaint on September 21, 2016 (Doc. 65) and submitted a proposed amended complaint on November 21, 2016. (Doc. 72). He sought to add claims, allegations, and six new defendants, including Conway and the KSP officers. The Court granted plaintiff leave to amend the complaint to add the KSP officers and Conway as defendants; a claim of First Amendment retaliation against the KSP officers and Conway as alleged in Counts III and IV of the proposed amended complaint; and a Fourth Amendment claim against the KSP officers for an unreasonable search conducted without probable cause as alleged in Count IV of the proposed amended complaint. (Doc. 75).

         The complaint as amended includes allegations that the two KSP officers came into plaintiffs hospital room at UCMC without having jurisdiction in Ohio and "under false pretense." (Doc. 72, p. 3, ¶ 10). Plaintiff alleges that the KSP officers came to UCMC and threatened him at the request of Conway, who was a gubernatorial candidate and Kentucky Attorney General at the time. (Id., ¶ 11). Plaintiff alleges that the KSP officers explained to him that they were sent by the Office of the Attorney General and Conway to talk to plaintiff about his social media postings, in which plaintiff routinely criticized Conway's work and urged black voters not to vote for him. (Id., p. 3, ¶ 11). Plaintiff alleges the KSP officers "intimidated [him] into stopping the publishing of political advice given to black voters on social media and [his] formerly sole-operated Web site www.theoutclause.com." (Id., ¶ 10). Plaintiff alleges his "speech was not a plot to overthrow the government or to break laws, but merely to inform black voters of the machinations of'Conway' and the '[the Kentucky Office of the Attorney General].'" (Id., p. 4). Plaintiff alleges that the KSP officers made what seemed like a threat to his livelihood and safety by saying 'handles [sic] this or else .. .'" (Id.). Plaintiff alleges that the threat caused him to shut down his web site, which was gaining in popularity. (Id.).

         Plaintiff alleges the KSP officers did not have a warrant for his arrest, they never served a warrant on him, and they were not in pursuit of him. (Id., ¶ 15). Plaintiff contends that while the "uniformed" KSP officer was interrogating him, the plain clothes officer searched under plaintiffs covers and found a shoe. (Id., pp. 3-4; ¶¶ 14, 16). Plaintiff alleges that he experienced a significant spike in his blood pressure and requested to go outside to walk around because his primary care physician had previously advised him to walk around to lower his blood pressure. (Id., p. 4). Plaintiff alleges that while he was outside, defendant Posey "rudely accosted" him by calling him "crazy" and telling him to go back inside, even though plaintiff had permission to go outside. (Id.). Plaintiff asserts that defendant Posey repeated his actions the following day when plaintiff was "participating in his healthcare." (Id.). Plaintiff alleges Posey was illegally detaining him in case the Kentucky State Police came back with an actual arrest warrant, which did not happen. (Id.).

         The Court has previously dismissed several of plaintiffs claims. (Doc. 72). The claims that remain in the case are plaintiffs claims against the UCMC defendants for violating plaintiffs rights under the UCMC Patient Bill of Rights by refusing to allow him to participate in his medical care plan, refusing to call him by his requested title, and threatening him with physical harm, disrespecting him, and calling him names; a First Amendment retaliation claim against the KSP officers and Conway; and a Fourth Amendment claim against the KSP Officers. (Docs. 3, 72). Plaintiff seeks injunctive relief requiring the UCMC defendants to recertify and enforce the UCMC Patient Bill of Rights, terminate Posey, and make a schedule for retaining UCMC surveillance video, and an injunction requiring all defendants to undergo "U.S. Constitution training"; "a finding of guilty on all counts"; $42, 000 in compensatory damages against defendants for intimidating and forcing plaintiff to shut down his website; and $15 million in punitive damages. (Doc. 3 at 4; Doc. 72 at 9).

         II. Plaintiffs motion for leave to file a second amended complaint

         Plaintiff filed his motion for leave to file a second amended complaint and a proposed second amended complaint on July 19, 2017. (Docs. 143, 143-1). Plaintiff seeks leave to add Benjamin Long, an employee of the Office of the Kentucky Attorney General, to the lawsuit as a new defendant and to substitute Richard St. Blanchard[1] and Danny Caudill for defendants "Two Unknown Kentucky State Police Officers." Plaintiff also requests leave to add a charge of "Intimidation" under Ohio Rev. Code § 2921.03 against St. Blanchard, Caudill, Conway, and Long and to increase his punitive damages request by S3 million. (Doc. 143-1, ¶ 36, p. 10).

         Defendants Two Unknown Kentucky State Police Officers do not oppose the substitution of Richard St. Blanchard and Danny Caudill for the previously unidentified KSP officers. (Doc. 149). Defendants oppose plaintiffs' motion in all other respects. The KSP officers oppose plaintiffs' request to amend the complaint to the extent plaintiff seeks to add new factual allegations and a claim for "Intimidation" under Ohio statutory law. They allege that the proposed amendment would unduly prejudice them and would be futile. Defendant Conway opposes plaintiffs motion for leave to amend on the grounds plaintiff allegedly made the motion in bad faith and to delay this case; the amendment would prejudice Conway and Long if he were added as a defendant; and the amendment would be futile because the proposed second amended complaint fails to state a claim to relief. (Doc. 145).

         Fed. R. Civ. P. 15(a) governs amendments to the pleadings. A complaint may be amended once as a matter of course within 21 days of service of responsive pleadings. Fed.R.Civ.P. 15(a)(1)(B). If a plaintiff wishes to amend the complaint after the 21 day period has expired, he must obtain consent of the opposing party or leave of the Court. Fed.R.Civ.P. 15(a)(2).

         The grant or denial of a motion to amend under Fed.R.Civ.P. 15(a) is within the discretion of the trial court. Leave to amend a complaint should be liberally granted. Foman v. Davis, 371 U.S. 178 (1962). "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., 427 F.3d 996, 1001 (6th Cir. 2005). The test for futility is whether the amended complaint could survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss. Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000).

         A complaint is subject to dismissal under Rule 12(b)(6) if it fails "to state a claim upon which relief can be granted.1' Fed.R.Civ.P. 12(b)(6). The complaint must contain a short and plain statement of the claim showing that the plaintiff is entitled to relief. Fed.R.Civ.P. 8(a). In order to be considered valid, the claim must be "plausible on its face." BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw reasonable inferences that the defendant is liable for the alleged actions. Id. at 556. While all well-pleaded factual allegations must be accepted as true, the Court does not have to accept legal conclusions that are "couched as" factual allegations. Papasan v. Attain, 478 U.S. 265, 286 (1986). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. The Court must hold pro se pleadings to a less stringent standard than those prepared by attorneys and must liberally construe them when determining whether they fail to state a claim. See, e.g., Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004).

         The Court will grant plaintiff leave to substitute St. Blanchard and Caudill for the previously unidentified KSP officers but will deny his motion to amend the complaint a second time in all other respects. Plaintiff waited far too long to request leave to add a new claim, new allegations, and another defendant to the lawsuit. He filed the original complaint on October 8, 2015 (Doc. 3), requested leave to file an amended complaint almost one year later on September 21, 2016 (Doc. 65), and filed the proposed amended complaint on November 21, 2016 (Doc. 72). Plaintiff then waited until July 19, 2017 to file his motion for leave to amend the complaint a second time. (Doc. 143). Plaintiff filed his motion on the same day his deposition was taken (see Doc. 142) and just ten days before the discovery deadline expired. (Doc. 125). Plaintiff has not stated a valid reason for waiting until nearly two years after he filed this lawsuit, just after his deposition was completed, and shortly before expiration of the discovery deadline to seek to add a new claim and another defendant to the lawsuit.

         Plaintiff indicates that he did not move to add Long as a defendant earlier because the role Long allegedly played in the violation of his civil rights became clear in discovery. (Doc. 143 at 2). While plaintiff may have learned more detailed information during discovery, the emails plaintiff attached to his proposed second amended complaint to support his allegations indicate that plaintiff accused Long of misconduct and threatened to sue him before plaintiff even filed this lawsuit. (Doc. 143-1, Exhs. A, C). According to the emails, plaintiff met with Long after plaintiff came to the State Capitol on July 14, 2015 (Id., Exh. D); on his twitter account some time prior to July 27, 2015, plaintiff accused Long, together with Conway and other employees of the Kentucky Attorney General's Office, of being involved in a "cover up" at the Attorney General's Office (Id., Exh. C); and on August 12, 2015, plaintiff sent an email to Long and other employees of the Attorney General's office advising them that he had filed a complaint with the United States Attorney General against Long, Conway and another employee accusing them of preventing plaintiff from reaching Conway by "blocking for" him (Id., Exh. A). Plaintiff specifically accused Long of giving him a business card with an invalid email address and "ambush[ing] [plaintiff] at the gates" one month earlier, and he accused another employee of "blocking for white supremacy." (Id., Exh. A). Plaintiff also stated that after filing the complaint, he would "pursue other legal remedies [against Long and others], such as a civil suit for failure to provide a service while in office. . . ." (Id.). Plaintiff has not offered a valid reason for waiting until July 2017, almost two years after he filed this lawsuit, to attempt to add Long to the case given plaintiffs prior knowledge of Long and plaintiffs threat to sue him. Further, assuming plaintiff could bring a claim for "Intimidation" under Ohio Rev. Code § 2921.03, a felony statute, plaintiff should have been aware of this claim when he filed his previous complaints since the claim does not appear to be based on any new facts.[2] Plaintiffs undue delay in seeking to amend the complaint to add an "Intimidation" claim and Long as a defendant weighs against granting the motion.

         In addition, allowing plaintiff to amend the complaint a second time at this late stage in the litigation would create significant prejudice to defendants. The case has been pending for nearly two years, and the discovery deadline has passed. Although plaintiff alleges that adding the new defendants would not require additional discovery, Long would be entitled to an opportunity to conduct full discovery on plaintiffs claims against him if he were added as a defendant. It would be unfair to defendants to further delay this case when plaintiff should have known of the basis for his claim against Long well in advance of expiration of the discovery deadline. See Duggins v. Steak TV Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (district court properly denied leave to amend where discovery had closed and the plaintiff was obviously aware of the basis of the claim for many months).

         Finally, plaintiffs motion for leave to amend should be denied because the proposed amendment could not withstand a motion to dismiss and is therefore futile. Rose, 203 F.3d at 421. Plaintiff cannot bring a claim for "Intimidation" against defendants St. Blanchard, Caudill, Conway and Long under Ohio Rev. Code § 2921.03(A) because plaintiff does not allege he is a public servant, party official, attorney or witness for purposes of the statute. Further, § 2921.03(A) is a criminal statute which does not provide for a civil remedy. Delaney v. Skyline Lodge, Inc., 642 N.E.2d 395, 404 (Ohio App. 1st Dist 1994). See also Graham v. Johanns, No. 2:07-CV-453, 2008 WL 3980870, at *14 (S.D. Ohio Aug. 21, 2008) (noting that Ohio courts have held there is no right to bring a private cause of action under a criminal statute).

         Plaintiffs claim against Long for a violation of his civil rights likewise could not withstand a motion to dismiss. Plaintiff alleges that Long took orders from Conway and relayed information to him on "how to handle Plaintiff, a black man whom was acting as a whistleblower about a public agency who used racial epithets toward Plaintiff while he was an employee of the agency"; Long was in contact with the KSP for months in an effort to "entrap" plaintiff, build a case of harassment against him, or otherwise send plaintiff to jail; Long wanted to have plaintiff punished for constantly reminding him of acts of "white supremacy" occurring in the country at the time; Long insulted plaintiff in an internal email by allegedly calling him "unstable" and "delusional"; and Long informed others in his office that a tweet plaintiff posted on Twitter that said, "It has to be done. There is no other alternative, " did not contain any context and then provided his own context by allegedly telling investigators that plaintiff "was about to attack employees" of the Attorney General's office, which led to the visit at UCMC from St. Blanchard and Caudill. (Doc. 143, ¶¶ 22-28; Exhs. C, D, E, F). As an initial matter, none of the emails from Long that plaintiff has attached to his complaint refer to plaintiff as "delusional" or include a statement by Long to investigators that plaintiff was about to attack anyone. (Id.). Further, plaintiffs factual allegations in the proposed second amended complaint, read in conjunction with the attached emails and construed in his favor, do not support a finding that Long's intent in sending or sharing communications with other employees in the Kentucky Attorney General's Office was to "entrap, " build a case of harassment against, or "punish[J" plaintiff. (Doc. 143, ΒΆΒΆ 22, 25) Plaintiffs conclusory allegations and the emails do not ...


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