Garnett Pannell v. District of Columbia
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 00-CV-1591 G ARNETT P ANNELL, A PPELLANT v. D ISTRICT OF C OLUMBIA , A PPELLEE Appeal from the Superior Court of the District of C olumbia (CA-3572-97) (Hon. Mildred M. Edwards, First Trial Judge) (Hon. John H. Bayly, Jr., Second Trial Judge) (Argued March 21, 2002 Mark D. Meyer for appella nt. appellant. Decided July 31, 2003) Robert J. Z akroff was on the brief for Mary T. Conn elly, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel at the time the brief was filed, were on the brief, for appellee. Before TERRY, S TEADMAN, and FARRELL, Associate Judges. T ERRY, Associate Judge: Appellant Pannell sued the District of Columbia, seeking damages for injuries which he allegedly sustained w hile he was a prisoner in 2 the custody of the District of Columbia Department of Corrections. The trial court denied two mo tions by ap pellant for leav e to amend his complaint and later granted the District s motion for summary judgme nt. From th at order Pan nell noted th is appeal. We affirm. I On September 21 , 1994, appellant was in the custody of the District of Columbia, awaiting an appearance before the Superior Court, when he was allege dly assaulted and sustain ed injuries. N early three y ears later, in M ay 1997 , appellant filed a one-cou nt comp laint against the District of Columbia alleging negligent supervision. In his complaint appellant stated: That the Plaintiff, while under the control and custody of the Defendant District of C olumbia in the holdin g cell, was severely beaten and physically and sexually abused by other individuals within the care, custody, control and/or supervision of the Defendant District of Columbia. * * * * * That the agents, servants, and/or employees of the District of Columbia breached [their] duties when they failed to: keep the Plaintiff in a reasonably sa fe environm ent; take reasonable steps to ensure the Plaintiff s physical and psychological safety as against others similarly under Defend ant s superv ision and co ntrol; take ade quate measures to supervise others within and without the holding 3 cell to ensure that they did not phy sically and/o r sexually attack the Plaintiff and cause him injury. About nine months later, during a deposition taken on February 11, 1998, appellant stated that he had been abu sed by po lice officers in addition to th e other priso ners in the holding ce ll.1 More th an sixteen m onths after that, on June 25, 1999, appellant moved for leave to a mend h is compla int by addin g a count re lated to the alleged assault by police officers. The court denied appellant s motion because there had been too great a delay (more than two years) between the filing of the complaint and the filing of the motion for leave to amend. On September 2, 1999, the District of Columbia took the deposition of appella nt s stan dard-o f-care e xpert, T homa s Rosa zza. Some time later, the District filed a motion in limine to exclude Mr. Rosazza s testimony. The court granted the motion in part as to Rosazza s proposed testimony about the standards of care related to excessive force by the police, negligent training of police officers, and negligent supervision of police officers, ruling that such testimony would be irrelevant at trial, given the allegations set forth in the complaint. The court also 1 The location of th is holding cell is not clear from the record, but it was apparently either in a police station or in the central cell block at police headquarters. For the pu rposes of this appeal, it does not m atter. 4 held that the complaint could be fairly read only to mean that the negligent supervision count was aim ed at the supervision of othe r prisoners and not at the District s supervision of its own police officers, wardens, or custodians. The case was then reassigned in the ordinary course to a different judge. On January 6, 2000, appellant filed another motion to amen d the com plaint. In this second motion, appellant sought to add an additional negligent supervision count aimed at the District s supervision of its police officers, wardens, or custodians. The second judge denied this motion as well, stating that the first judge s order denying the first motion to amend remained the law of the case, absent any new law or new facts shown by appellant. The judge also said that appellant should have been aware of the facts underlying his allegation of police involvement much earlier, even before he originally filed his complaint. Finally, the judge noted that appellant had still failed to expla in the delay between the date of his deposition, when he described the beating by police, and the filing of the first motion to amend the com plaint. 5 On Augus t 1, 2000, the District filed a renewed m otion for summ ary judgme nt, 2 arguing that appellan t had failed to d esignate an expert who could testify about a national standard of care concerning the duty to supervise other prison ers and to maintain a safe environm ent. Agree ing with the District that ap pellant cou ld not prove an essential element of his case, the court granted the motion for sum mary judgme nt. II Appellant s first claim of e rror is that the trial court erred in denying his two motions to amend the complaint. Leave to amend a complaint after the filing of responsive pleadings ( as in this case) is a matter w ithin the discretion of the trial court. See Crowley v. North American Telecomm unications Ass n, 691 A.2d 1169, 1174 (D.C. 199 7); Johnson v. Fairfax Village C ondom inium IV U nit Owners A ss n, 641 A.2d 495, 501 (D.C. 1994); Super. Ct. Civil Rule 15 (a). However, the policy that favors reso lution of disp utes on the merits creates a virtual presumption that leave to ame nd sho uld be g ranted u nless the re are so und rea sons fo r denyi ng it. See 2 The court had d enied the District s earlier motion for summary judgment, for reasons not entirely clear from the limited record before us. The motion itself is not in the record. 6 Johnson, 641 A.2d at 501. Factors affecting the co urt s discretion include: (1) the number of requests to amend; (2) the length of time that the case has been pending; (3) the presence of bad faith or dilatory reasons for the request; (4) the merit of the proffered amended pleading ; and (5 ) any pr ejudice to the no n-mo ving pa rty. Crowley, 691 A.2d at 117 4. The lateness of a m otion for leave to ame nd, however, may justify its denial if th e movin g party fails to s tate satisfactory reasons for the tardy filing and if the granting of the motion would require new or additional discovery. Eagle Wine & Liquor Co. v. Silverberg Electric Co., 402 A.2d 31, 35 (D.C. 1979). In the case at bar, appellant filed his first motion for leave to amend the complaint three days before the trial was originally scheduled to b egin, and more than two years after the complaint was initially filed. He sought to add a new count based on facts known to him at least one year before he filed the motion. By that time discovery was closed, and the parties were prepared for trial on the sing le claim that the Distric t had been negligent in its supervision of the prisoners in the holding cell. The trial court denied the first motion after a hearing on June 28, 1999. The court granted a continuance at that hearing, but only for the purpose of designating 7 an expert witness who could testify about the standard of care for supervising prisoners in custody . Given the lateness of the motion for leave to amend and appellant s desire to amend the complaint with a count for which there had been no discovery, we hold that the cou rt acted we ll within its discretion when it denied appellant s first motion for leave to ame nd the c ompl aint. Eagle Wine, 402 A.2d at 35. A little more than six months later, appellant filed his second motion for leave to amend the co mplaint. In that motion he soug ht to add an assault and b attery count and to amend the original n egligent sup ervision co unt to include an allegation that police officers, as w ell as prisoner s, had assau lted him in the holding cell. The court again denied the motion, ruling that its initial order denying leave to amend was the law of the case and that appellant had failed to offer any new law or new facts that would wa rrant reconsideration of the June 28 order. The law of the case doctrine bars a trial court from reconsidering the same question of law that was presented to and decided by another [judge] of coordinate jurisdicti on . . . . Tompkins v. Washington Hospital Center, 433 A.2d 1093, 1098 (D.C. 1981). T he analysis focuses on whether the question initially decided is substantially the same as the issue being presented and whether the court s first 8 ruling was deemed to be final. Gordon v. Raven Systems & Research, Inc., 462 A.2d 10, 12 (D.C. 1983) (citing Tompkins). The doctrine applies when (1) the motion under consideration is substantially similar to the one already raised before, and considered by, the first court; (2) the first court s ruling is sufficiently final; and (3) the prior ruling is not clearly erroneous in light of newly presented facts or a change in substantive law. P.P.P. Productions, Inc. v. W & L, Inc., 418 A.2d 151, 152 (D.C. 198 0) (citation and internal quotation m arks omitted). Appellant argues that his second motion to amend was intended merely to clarify the neg ligent su pervisio n coun t in his or iginal co mplain t. He also contends that this count was meant to encompass claims for both negligent supervision of the prisoners and neglig ent superv ision of the p olice officers a t the holding ce ll. Further, appellant maintains that he was taken by surprise when he first learned on December 6, 1999, tha t the court was construing the compla int to aver on ly negligent supervision of prisoners and not negligent supervision of police officers. To support this assertion, appellant relies on a contorted reading of the complaint s allegation that the District failed to take adequate measures to supervise others within and without the holding cell to ensure that they did not physically and/or sexually attack the Plaintiff and cause him injury (emphasis added). Appellant argues that this language clearly identifies both the prisoners within the holding 9 cell and the police o fficers w ho we re allege dly w ithout t he hold ing cell. We cannot agree. Reading this portion o f the com plaint in con text and considering the complaint as a whole, the trial court could reasonably construe the allegations regarding the attack as ref erring only to other priso ners in the h olding cell, no t to police officers or wardens. Indeed, appellant s reading of the within an d withou t language is difficult to reconcile with the phrase earlier in the same paragraph which states that the District failed to take reasonable step s to ensure the Plaintiff s physical and psyc hological sa fety as against others similarly under [the District s] supervision (empha sis added). T he latter phra se underm ines appellant s interpretation because it more closely identifies the alleged attackers as othe rs similarly under the District s supervision, which in context can only mean other prisoners in the holdin g cell. Consequently, we can find no error in the trial court s interpretation of the co mplain t, see Scott v. District of Colum bia, 493 A.2d 319, 323 (D.C. 1985) ( It is not error . . . for a trial judge to limit his consideration to issues unequivo cally raised by the complaint (citations omitted)), and no abuse of discretion in the denial of the renewed motion to amend. 10 III Finally, appellant maintains that the trial court im properly granted sum mary judgment to the District. 3 Summary judgment is proper when a party fails to establish an essential element of his case upon which he bears the burden of proof. Celotex Corp. v. C atrett, 477 U.S. 317, 327 (1986). In a negligence action, the plaintiff bears the burden of proof on three iss ues: the applica ble stan dard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff s injury. E.g., Messina v. District of Colum bia, 663 A.2d 535, 537 (D.C. 199 5); Toy v. District of Colum bia, 549 A.2d 1, 6 (D.C. 1988). The trial court held, and we agree, that appellant s proof on the first issue was insufficient to withstand the District s summary judgment motion. This court has repeatedly he ld that the standard of care owed by the District of Columbia to persons in its custody is a matter beyond the ken of the average juror 3 Appellant also contends that the cou rt erred by g ranting, in part, th e District s motion in limine concerning ex pert testimo ny. We need not a ddress this contention in light of our holding that the motions f or leave to amend were pro perly denied and that summary judgment was properly granted. The order granting the motion in limine excluded testimony only about the standard of care for the claims which the court refu sed to allow appellant to ad d to his com plaint by am endme nt; the excluded testimony was not relevant to the unamended claim, on which summary judgment was granted. 11 that requires expert testimony. Clark v. D istrict of Colum bia, 708 A.2d 632, 634 (D.C. 1997) (citations omitte d); accord , e.g., District of Columbia v. Moreno, 647 A.2d 396, 398 -399 (D.C . 1994); District of Columbia v. Carmichael, 577 A.2d 312, 314 (D.C. 1990) (in a case involving alleged assault on two prisoners by several fellow prisoners, expert testim ony wa s essential ); Toy, 549 A.2d at 7. Where, as in this case, the plaintiff must depend on expert testimony, it is not sufficient for the expert to explain what he or she would have done under similar circumsta nces, or to declare that the District violated the national standard of care. Phillips v. District of Colum bia, 714 A.2d 768, 773 (D.C. 1998) (citation omitted). On the contrary, the expert must clearly articulate and refer to a standard of care by which the defendant s actions can be measured. Id. (citing Clark, 708 A.2d at 635 ). The court in this case granted summary judgment upon learning that appellant s expert witness could not offer an expert opinion about the standard of care that the Distric t allegedly bre ached. Th omas R osazza testifie d under oath in two depositions, but he failed to offer any support for his conclusion that the District violated a national standard of care to supervise th e prisoners in its custody a nd to keep them in a reasonably safe environment. In his first deposition on September 11, 1999, Rosazza testified as follows: 12 Q. Okay, Mr. Rosazza, as I understand your opinions, all your conclusions and opinions seem to concern actions of officers w ho are in ch arge of M r. Pannell. A. Yes. Q. Do you have any opinion concerning whether the officers met the nationa l standard o f care with re spect to supervision of other prisoners? A. No. * * * * * Q. Okay. Do you have any opinion as to whether the officers at the jail met th e national stan dard of car e with respect to keeping the plaintiff and other inmates in a relatively safe e nvironm ent? A. No. * * * * * Q. Do you have any opinion as to w hether the officers at the jail where Mr. Pannell was maintained met the national standard o f care with re spect to insu ring plaintiff s physical and psyc hological sa fety as against other prisoners? A. No. Later, at a second videotaped deposition de bene esse, Rosazza could only state generalized duties (e.g., the ultimate duty is to protect ; duty is to separate the prisoners . . . to provide for a safe environmen t ) and offer his own c onclusory opinion that the standard of care was violated. Although Mr. Rosazza testified that the District violated the national standard of care, he never said what that 13 standard was. He did refer once to a document entitled Standards for Law Enforcement Agencies, but he did not mention any particular standard that might be found in that docu ment. Thus we hold that the proffered testimony of Mr. Rosazza was insufficient to prove a nation al stand ard of c are. See Phillips, 714 A.2d at 773 (reference to American Correctional Association (ACA) standards was insufficient when no specific standard was identified; the expert must testify as to specific ACA standards . . . and mus t relate them to the defendant s con duct (em phasis in original) (citing Moreno, 647 A.2d at 401)); Clark, 708 A.2 d at 635 n.3 (passing reference to an AC A standa rd not sufficie nt). Witho ut this necessary expert testimony, appellant could not prove an essential element of his claim, and therefore the trial court pr operly gran ted summ ary judgm ent to the D istrict. IV We find no abuse of discretion in the denial of appellant s belated motions for leave to amend his complaint, and we hold that the District s motion for summ ary judgm ent was p roperly gra nted. That ju dgmen t is according ly Affirmed.
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