Smith v. Ray et al, No. 2:2008cv00281 - Document 101 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION and FINAL ORDER Adopting 79 Report and Recommendation; Granting Consolidated City Defendants' 27 Motion to Dismiss or for Summary Judgment; Dismissing without prejudice the state law claims; finding as moot 51 Motion Any and All relief; denying 68 Motion for Any and All Relief; denying 69 Motion to Amend/Correct; finding as moot 80 Motion for Medical Examination; finding as moot Bullard's 91 Motion for Summary Judgment; finding as moot 96 Motion to Dismiss Assault claim ; finding as moot 97 Motion to cause Bullard to file certified copy of CD. Signed by District Judge Rebecca Beach Smith and filed on 4/7/09. Copy ECF to all parties and to Magistrate Judge 4/7/09. (lwoo)
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FILED UNITED STATES DISTRICT COURT APR -7 2009 EASTERN DISTRICT OF VIRGINIA Norfolk Division CLERK. U.S. DISTRICT COUHT NORFOLK. VA AMANDA DEANNE SMITH, Plaintiff, v. OFFICER R. ACTION NO. R. RAY, et 2:08cv281 al., Defendants. MEMORANDUM This motions, I. matter as set comes before the court on ORDER a variety of pending forth below. Consolidated City Defendants' Motion to Dismiss or for Summary Judgment (Docket On November 18, Motion to Dismiss 1 F. OPINION AND FINAL or #27) 2008, for the Consolidated City Defendants1 Summary Judgment, in Case No. filed a 2:08cv449.2 This phrase refers to all defendants except defendant Tony Bullard. 2 Case No. 2:08cv449 was consolidated with Case No. 2:08cv281 by Order of October 28, 2008, after which Case No. 2:08cv449 was dismissed, with all operative pleadings being merged into Case No. 2:08cv281. Plaintiff argues that the court improperly dismissed Case No. 2:08cv449 in its Order of December 12, 2008. The fact of the matter is that the court acted as it did in an attempt to clarify the multiple pleadings that had been filed, and to sort through plaintiff's duplicative submissions. In short, the Order sought to bring the parties, and this court, onto the same page. Any procedural wrinkles that developed as a result of the December 12, 2 008, Order, were brought about by the befuddling way in which plaintiff's counsel has chosen to proceed with this action. Importantly, all of plaintiff's claims in Case No. 2:08cv449 survived the December 12, 2008, dismissal, and are being addressed herein with respect to the Consolidated City Defendants' Motion for Summary Judgment. The matter was referred to a United States Magistrate Judge, pursuant to the provisions Civil Procedure hearings, of 28 U.S.C. 72(b), if necessary, applicable, to § 636(b)(l)(B) conduct hearings, 2009 including Rule of evidentiary and to submit proposed findings of fact, if and recommendations for the disposition of the motion. A hearing was conducted on January 23, James E. and Federal 2009. Magistrate Judge Bradberry issued a Report and Recommendation on February 13, (the "Report"), and recommended that summary judgment be granted as to plaintiff's claims brought pursuant to 42 U.S.C. § 1983. After concluding that plaintiff "has failed to demonstrate a constitutional violation," the Report further recommended that this court decline to exercise supplemental jurisdiction over plaintiff's state law claims. (Report Tony F. 24.) Both submitted objections and responded to 2009.3 has Consolidated Bullard filed objections Plaintiff 5, the As such, defendant the Report on February 27, raised by defendants 2009. 2009, on March 4 and court, having the matter is now ripe for review. examined findings with respect thereto, the and No other filings have been received and the time for filing expired. The Defendants to the Report on February 20, to the objections City findings and the objections and made de novo does hereby adopt and approve in full recommendations set forth in the Report and Recommendation of Magistrate Judge Bradberry filed February 13, 2009. 3 Plaintiff responded to objections on March 4, on March 5, 2009. 2009, the Consolidated City Defendants' and to defendant Bullard's objections Accordingly, the Consolidated City Defendants' Motion to Dismiss or for Summary Judgment is GRANTED with respect to plaintiff's claims arising under 42 U.S.C. § 1983. Further, this court declines to exercise supplemental jurisdiction over plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3) (permitting a district court to decline to exercise supplemental jurisdiction when it has dismissed the claims over which it has original jurisdiction); v. Gibbs. 383 U.S. 715, 726 a doctrine of discretion, (1966) United Mine Workers of Am. ("[Supplemental] jurisdiction is not of plaintiff's right."). These state law claims are hereby DISMISSED without prejudice.4 II. Plaintiff's Motion for Relief Pursuant to Fed. R. Civ. P. 60(b) and Motion to Amend and/or to Consolidate Pleadings (Docket #68 and 69) Also pending before the court are plaintiff's "Motion for Relief Pursuant the to Fed. R. Alternative 2009. P. 60(b)" Consolidate As such, Plaintiff both Case No. the Amended 4 seeks to 2:08cv281 Original Complaint plaintiff they will seeks (1) to Amend, both filed and/or January in 23, the two motions ask for identical reinstate Case No. and 2:08cv449 name "Motion be discussed together. Complaint to and Pleadings," Although styled differently, relief. amend to Civ. in Case Officer 2:08cv449 to proceed No. Jay and allow together; 2:08cv281 Keatley. to consolidate these two pleadings, and the and (2) Second Alternatively, and then amend Plaintiff's Motion for Additional Discovery in this federal court pursuant to Fed. R. Civ. P. 56(f) (Docket #51) is now MOOT. them both to name Officer Keatley. Because the court neither proposed course of action is appropriate, that allowing plaintiff these motions leave to amend is not finds that and further finds warranted, each of is DENIED. This case comes before the court with a complex and protracted procedural history that, in repeated herein.5 Federal party pleading to amend a responsive pleading the party 15(a)(2); (4th may 1988) rests within leave to once served. only as After by leave (noting that the sound discretion further repeated the Rule of Civil the amend should "undue delay, of amend interest see also Nat'l Bank of Wash, Cir. allowed, is the be matter that of v. of need of not permits a course before Fed. Pearson. 863 F.2d 322, "freely a opportunity has passed, court. the be whether to district given," R. Civ. grant 327 leave court). reasons P. While such as bad faith or dilatory motive on the part of the movant, failure to cure deficiencies bv amendments previously undue prejudice to the opposing party by virtue of allowance amendment, (1962) As brevity, Procedure 15(a) decision futility of amendment," district court's denial of amendment. 182 a of (emphasis documented and others justify Foman v, Davis. 371 U.S. of court, plaintiff a 178, added). in numerous orders this has had several opportunities to present her case through a properly pled 5 Magistrate court's orders of thoroughly describe Judge Bradberry's Report, December 12, 2008, and the procedural history of as well as January 15, this matter. this 2009, complaint. Plaintiff's court practice, the rules counsel as well as of this inappropriately, is clearly unfamiliar with the rules of court. In Glaser v. federal civil procedure and fact, plaintiff to plead new theories of recovery.6 repeatedly failed to cure deficiencies Enzo Biochem. Inc.. 464 federal Plaintiff has in her pleading. F.3d 474, 480 continues, See, (4th Cir. e.g.. 2006) (no abuse of discretion in denying motion to amend because plaintiffs had "many opportunities several months of to present pre-complaint iterations of their complaint); F.2d 1180 motion (4th to Cir. amend opportunities to their 1986) discovery Ahmed v. (unpublished proper state given his claim pro in "continuing inability to do so[.]"). cure deficiencies in her claim," and had plaintiffs set forth had four Chesapeake Hosp. Auth.. table se a where decision) (denial plaintiff's coherent fashion, 803 of numerous and his Plaintiff's repeated failure to pleading, after being given numerous opportunities to do so, weighs against this court affording her leave to amend yet again. Further, would only the court notes that allowing plaintiff to amend again further confuse and complicate matters. Plaintiff submitted three different proposed amended complaints with her Motion 6 For instance, in her response to the Consolidated City Defendants' Motion to Dismiss or for Summary Judgment, plaintiff contends that the search of the residence where she was a guest when this incident occurred violated the Fourth Amendment. The Second Amended Complaint contained no such allegation. See Report at 10 n.4. to Amend and/or and 69-4. to These Consolidate amended Pleadings. complaints See Docket contain parties #69-2, and 69-3, causes of action that were dismissed, on plaintiff's motion, motion to amend was Should the court afford plaintiff leave to amend, plaintiff Additionally, counsel's several may of this opportunities This September, 2006. court again has court's to it claims. Two separate spent an actions hours Based on requisite 7 could articulable For the submissions find Report that suspicion instance, to filed, wade in and through against amendment. e.g. . juror occurred have been is not clear whether plaintiff See, complete In short, plaintiff's apparent inability to U.S.C. 1983. been given and that attempting to cognizable claim of reasonable complaint. has cogent, incident federal countless Plaintiff likely does not have a § inaccurate coherent, concerns straighten out her case weighs federal an process. present case plaintiff's submissions. Finally, submit leave to amend is not warranted because of plaintiff's abuse pleadings. this filed.7 weeks before her at for plaintiff's an this court, plaintiff a direct violation of 14, Officer has any meritorious 18 Ray (concluding did not investigative "Proposed that 42 no possess the detention of Consolidated Cases Complaint" (Docket #69-3) names the City of Virginia Beach Police Department, Officer Kevin Murphy, and Officer Donald Austin as defendants. On January 14, 2009, well before plaintiff filed her motion to amend, the court granted plaintiff's motion to dismiss these defendants. See January 14, 2009, the court's comprehension why plaintiff defendants she has already dismissed. Order would at 2. It is continue beyond to name plaintiff, nor that he used excessive force in arresting plaintiff).a At most, one plaintiff could perhaps have a state law tort claim against of the City of Virginia Beach Bullard. To the extent she does, her claims such in state court. further tolerate plaintiff's Police plaintiff This Officers is court, or defendant free to proceed with however, refuses to "sloppy" pleading or to expend further resources untangling the procedural Gordian knot into which this case has devolved, and will obviously continue to evolve through the filing of yet another amended complaint.9 III. Motions Concerning Defendant Bullard Lastly, Tony F. Claim for 8 96, and 97) currently pending are three motions concerning defendant Bullard: filed March (Docket #91, 6, (1) defendant Bullard's Motion for Summary Judgment, 2009; Assault (2) plaintiff's Against Additional Bullard, evidence that Motion to Voluntarily Dismiss pursuant plaintiff's to Fed. R. Civ. § 1983 claims P. are likely meritless is found in the transcript from the summary judgment motion hearing held before Magistrate Judge Bradberry. See, e.g. , Tr. at 6-7. For example, after hearing plaintiff's argument that excessive force was used during the arrest, Judge Bradberry remarked: "If you think that's excessive force, then there is no question this case is not going to survive. This case is not going to survive." Further, with respect to plaintiff's allegation that Officer Ray and defendant Bullard were unlawfully present on the Bradberry noted property where this that this argument incident occurred, Judge is "going to lose," and plaintiff does not "even get off the ground on that [argument]." Id. While Judge Bradberry's comments are not dispositive to the issues they addressed, they provide persuasive insight into whether plaintiff has any meritorious federal claims, and whether further amendment would be 9 to any avail. See supra notes 6, 7, and 8, and accompanying text. 41(a)(2), Tony filed March 17, Bullard to File 2009; Sworn Referred to in Affidavits and (3) &/or plaintiff's Certified "Motion to Cause Copies of Documents in Support of Motion for Summary Judgment or in the Alternative to Strike from the Record Said Affidavit," also filed March against 17, 2009. defendant Because Bullard were the only assault has declined to exercise supplemental state law motions The Opinion claims, see supra Part I, claims plaintiff and battery, and asserted this court jurisdiction over plaintiff's each of these three pending is now MOOT.10 Clerk and is Final DIRECTED Order to to forward all a counsel copy for of both this Memorandum parties and to Magistrate Judge Bradberry. IT IS SO ORDERED. Rebecca Beach Smith United States District Judge REBECCA BEACH Norfolk, April r| 10 SMITH United States District Judge Virginia , 2009 The Consolidated City Defendants' Mental Examination of Plaintiff (Docket #80) is likewise MOOT. pursuant Motion for Physical and to Fed. R. Civ. P. 35
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