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Pineda v. Berry

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

May 3, 2018

ALI PINEDA, Plaintiff,
v.
RAYMOND BERRY, et al., Defendants.

          Dlott, J.

          REPORT AND RECOMMENDATIONS

          Stephanie K. Bowman, United States Magistrate Judge.

         This civil action is before the Court on Plaintiff Ali Pineda's Motion for Leave to Amend the Complaint and/or to Vacate Order (Doc. 57), and the parties' responsive memoranda (Docs. 67, 69.) Upon careful review, the undersigned finds that Plaintiff's Motion is well-taken.

         I. BACKGROUND AND FACTS

         In this civil rights case brought pursuant to 42 U.S.C. § 1983, Plaintiff Ali Pineda accuses Hamilton County Sheriff's Deputies Roy Berry, William Cotton, and Gene Nobles (“County Defendants”) of use of excessive force and failure to provide medical assistance. He alleges that, in the early morning of November 10, 2013, one of them struck him in the head with a baton in the course of breaking up a fight at the Inner Circle nightclub, where the deputies were working a private security detail. Pineda also sues PNA, Inc. (“PNA”) doing business as Inner Circle.

         A. Procedural Posture

         Plaintiff's original five-count Complaint was filed on October 26, 2015. (Doc. 1.) He sued Hamilton County, Hamilton County Sheriff James Neil, the Hamilton County Sheriff's Department, Hamilton County Deputy Sheriffs Raymond Berry, William Cotton, and Gene Nobles, PNA, Inc. doing business as Inner Circle, and Cincinnati Police Officer Jeffrey Gramke. (Id. at PageID 3-4 (¶¶ 6-14).) Count 1 alleged excessive use of force and a failure to protect in violation of Section 1983 against the County Defendants. (Id. at PageID 8-9 (¶¶ 32-37).) Counts 2, 3, and 4 alleged conspiracies in violation of Section 1983 and 42 U.S.C. § 1985(3) between Deputy Sheriffs Berry, Cotton, and Nobles and Cincinnati Police Officer Gramke to deny Plaintiff equal protection of the law on account of his race (Hispanic) and national origin (Honduran). (Id. at PageID 9-11 (¶¶ 38-53).) Count 5 alleged negligence against County Defendants and Inner Circle. (Id. at PageID 11 (¶¶ 54-57).) On March 14, 2016, Senior United States District Judge Sandra S. Beckwith granted the County Defendants' Rule 12(b)(6) motion to dismiss the Complaint, leaving PNA and Cincinnati Police Officer Gramke as the remaining Defendants. (See Doc. 13.) Counsel for Plaintiff and counsel for Police Officer Gramke thereafter consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c) in the Rule 26(f) Joint Discovery Plan they filed on April 4, 2016 (Doc. 15.)[1]

         On April 11, 2016, Plaintiff filed a motion, pursuant to Rule 15(a), asking for leave to amend his Complaint with respect to his excessive use of force claim against Deputy Sheriffs Berry, Cotton, and Nobles and for leave to add a claim against the same deputies under Section 1983 for failure to provide adequate medical care; and, pursuant to Rule 59(e), asking the Court to amend its judgment to reinstate his excessive use of force claim against all County Defendants. (Doc. 22.) After hearing oral argument, the undersigned granted Plaintiff's motion to amend from the bench. (See 06/23/2016 Minute Entry.)[2]

         Plaintiff timely filed his six-count Amended Complaint on July 6, 2016. (Doc. 29.) Counts 1, 2, and 3 allege excessive use of force, a failure to protect, and a failure to provide medical assistance against Deputy Sheriffs Berry, Cotton, and Nobles. (Id. at PageID 154-55 (¶¶ 30-35).) Counts 4 and 5 allege a failure to supervise and ratification as to the deputy sheriffs' excessive use of force against the Hamilton County Sheriff's Department and Sheriff Neil. (Id. at PageID 155-56 (¶¶ 36-42).) Count 6 alleges a claim of negligence against PNA. (Id. at PageID 156 (¶¶ 43-45).)[3] County Defendants then filed a Notice of Non-Consent under 28 U.S.C. § 636(c) (Doc. 31), an Objection (Doc. 28) to the undersigned's order granting Plaintiff's motion to amend, and a motion to dismiss Plaintiff's Amended Complaint (Doc. 32.)

         Finding that County Defendants had not “explicitly or implicitly” consented to the jurisdiction before a magistrate judge, on September 20, 2016 Judge Beckwith reassumed jurisdiction of this civil action and reviewed the undersigned's June 23, 2016 order as if it were a Report and Recommendation.[4] (Doc. 37 at PageID 229.) The Court first addressed Plaintiff's Rule 59(e) motion, which it declared moot. To this end the Court noted that, while its March 14, 2016 Order dismissed all claims against County Defendants, claims against PNA and Cincinnati Police Officer Gramke survived. No separate judgment was entered in favor of County Defendants, [5] and, accordingly, Rule 59(e) was not an appropriate means to challenge this non-final order. (Doc. 37 at PageID 229-30 (citing Simmerman v. Ace Bayou Corp., 304 F.R.D. 516, 517-18 (E.D. Ky. 2015).) With simply a Rule 15(a) standard in place, the Court then overruled County Defendants' Objection and concluded that justice required granting Plaintiff leave to amend his Complaint. (Id. at PageID 230-32.)

         The Court turned next to County Defendants' motion to dismiss Plaintiff's Amended Complaint. It denied their motion with respect to Plaintiff's excessive use of force (Count 1) and deliberate indifference to serious medical needs (Count 3) claims, but granted it as to Plaintiff's failure to protect (Count 2), failure to supervise (Count 4), and failure to investigate/ratification (Count 5) claims. (Id. at PageID 232-38.) The Court also determined that the deputy sheriffs were not entitled to qualified immunity regarding the excessive force and deliberate indifference claims. (Id. at PageID 238- 39.) In dismissing Count 5, the Court was guided by the principle that municipal ratification of an alleged constitutional violation can only occur through an official with final decision-making authority. (Doc. 37 at PageID 236 (citing Brown v. Chapman, 814 F.3d 447, 462 (6th Cir. 2016).) Because the Amended Complaint did not allege that the Sheriff himself was notified of Plaintiff's claim that a deputy had intentionally struck him on the head and, despite this notification, failed to investigate, the Court reasoned that Count 5 was appropriately dismissed. (Id. at PageID 237 (quoting Brown, 814 F.3d at 462 (“Plaintiff does not name a final decisionmaker, but rather alleges that the Cleveland police department, as a whole, ratified the officers' conduct. This is insufficient to establish the requisite degree of culpability.”) (internal citation omitted).)

         The Court concluded:

[T]he amended complaint fails to allege facts showing that the Sheriff had actual or constructive knowledge that one or more [of] his deputies had allegedly used excessive force against Plaintiff. Without a final decision-maker's actual or constructive knowledge of the alleged unconstitutional conduct, there cannot be an official municipal policy amounting to ratification of the deputies' constitutional violation. Therefore, neither the Sheriff nor the County can be held liable under the theory that they ratified the deputies' alleged use of excessive force.

(Id. at Page 238 (emphasis added).)[6]

         B. Overview of Plaintiff's Pending Motion

         Pursuant to Rules 15(a) and 54(b), Plaintiff now asks for relief from that portion of the Court's September 20, 2016 Order that dismissed from his Amended Complaint the failure to investigate/ratification claim (Count 5) against the Hamilton County Sheriff's Department and Sheriff Neil. Plaintiff asks to further amend his Amended Complaint to provide allegations of fact in support of this claim, arguing that his Motion is timely and predicated on evidence not available when County Defendants' motion to dismiss was decided. He argues additionally that allowing him to amend will not prejudice the ability of the Hamilton County Sheriff's Department and Sheriff Neil to defend against the claim. County Defendants oppose Plaintiff's Motion on the grounds that, procedurally, it is untimely and-because it gives the indication of adding a new party-would run afoul of the statute of limitations. Substantively, County Defendants contend that Plaintiff was dilatory in asking to amend, and, in any event, his proposed amendment would be futile.

         In response to County Defendants' memorandum, Plaintiff attaches to his reply his Proposed Second Amended Complaint. (Doc. 69-1.) His proposed amended paragraph 23 reads as follows:

After being informed of Pineda's allegations, the Hamilton County Sheriff's Department and Sheriff Neil, through its and his official designee, Chief Deputy Mark Schoonover, initiated what was represented to be an investigation into this matter. However, the investigation failed to include an interview of Mr. Pineda or any witnesses to the incident with the exception of the sheriff's deputies who participated in the event. In reality, the investigation was never intended to determine what actually took place and as such was so unreasonably inadequate that it can be fairly characterized as a sham investigation.

(Id. at PageID 1225.) Plaintiff's proposed amended paragraph 41, describing the basis of his excessive force/ratification claim ...


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