United States District Court, S.D. Ohio, Western Division
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
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).
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).
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).
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.).
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.
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).
Plaintiffs motion for leave to file a second amended
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 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.
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).
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.
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).
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).
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.
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. Plaintiffs undue
delay in seeking to amend the complaint to add an
"Intimidation" claim and Long as a defendant weighs
against granting the motion.
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).
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).
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, ¶¶ 22, 25) Plaintiffs
conclusory allegations and the emails do not ...