United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATIONS
Stephanie K. Bowman, United States Magistrate Judge.
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.
BACKGROUND AND FACTS
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.
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.)
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.)
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).) 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.)
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. (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,  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.)
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
[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
(Id. at Page 238 (emphasis added).)
Overview of Plaintiff's Pending Motion
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.
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
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 ...