UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

DAVID CUTSINGER, 

 Plaintiff, Case No. 15-cv-10746 

v 

 Honorable Thomas L. Ludington 

STEVEN HUMPHREY et al., 

 Defendant. 

__________________________________________/ 

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST 

AMENDED COMPLAINT, DIRECTING PLAINTIFF TO FILE FIRST AMENDED 

COMPLAINT, DENYING MOTIONS FOR SUMMARY JUDGMENT WITHOUT 

PREJUDICE, GRANTING BOTH PARTIES LEAVE TO FILE AN ADDITIONAL 

MOTION FOR SUMMARY JUDGMENT WITH AN EXTENDED PAGE LIMIT, 

REOPENING DISCOVERY, AND EXTENDING THE SCHEDULING ORDER 

On March 1, 2015, Plaintiff David Cutsinger filed his complaint against Defendant police 

officers Steven Humphrey and Jennifer Tilson. ECF No. 1. Plaintiff alleges that Officers 

Humphrey and Tilson entered the curtilage of his home and his home, used excessive force, and 

seized Plaintiff in violation of the 4th Amendment. Id. Plaintiff also alleges counts of assault and 

battery and failure to intervene. Id. 

Discovery closed on September 8, 2015. See ECF No. 12. During discovery, Plaintiff 

contends he learned that neither Defendant had received sufficient Fourth Amendment training. 

ECF No. 15. On September 9, 2015, Plaintiff moved for leave to file an amended complaint, 

seeking to add a 42 U.S.C.A. § 1983 claim against Clare County and the Clare County Sherriff, 

John Wilson, for failing to adequately train Humphrey and Tilson pursuant to Monell v. 

Department of Social Services of New York, 436 U.S. 658 (1978). Defendants argue that 

Plaintiff’s motion to amend should be denied as both untimely and futile. ECF No. 17. Because 

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the proposed amendment is neither untimely nor futile, Plaintiff’s motion to amend will be 

granted. 

I. 

 Plaintiff David Cutsinger resides in the state of Michigan. Proposed Defendant County 

of Clare is a municipality within the State of Michigan. Proposed Defendant John Wilson is the 

elected sheriff of Clare County. Defendants Steven Humphrey and Jennifer Tilson are deputy 

sheriffs for the Clare County Sheriff, John Wilson, in the County of Clare. 

The factual allegations alleged by Plaintiff are presumed true for purposes of evaluating 

whether to grant the motion to amend. Plaintiff alleges that in the early morning of November 9, 

2014, Defendants Humphrey and Tilson entered the curtilage of Plaintiff’s home and the home in 

violation of the Fourth Amendment. Plaintiff also alleges that in entering his home, Defendant 

Humphrey used excessive force in pepper spraying Plaintiff in the face, and that Defendant 

Tilson failed to intervene to protect Plaintiff against the excessive force. 

 The day after the close of discovery, Plaintiff filed his motion for leave to file a first 

amended complaint. ECF No. 15. Plaintiff seeks to add a Monell claim against Clare County and 

John Wilson in his official capacity as Clare County Sherriff under 42 U.S.C.A. § 1983. 

Specifically, Plaintiff alleges that Clare County and John Wilson’s inadequate training of their 

their deputy sheriffs constituted a policy that resulted in the alleged injuries to Plaintiff in 

violation of the Fourth Amendment. Id. at ¶¶ 107-18. 

II.

Under Federal Rule of Civil Procedure 20, persons may be joined as defendants in an 

action if: “(A) any right to relief is asserted against them jointly, severally, or in the alternative 

with respect to or arising out of the same transaction, occurrence, or series of transactions or 

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occurrences; and (B) any question of law or fact common to all defendants will arise in the 

action.” Fed. R. Civ. P. 20(a)(2). “Joinder is encouraged because it avoids multiple lawsuits 

involving similar or identical issues.” Pasha v. Jones, 82 F.3d 418 (6th Cir. 1996) (citing Mosley 

v. General Motors Corp., 497 F.2d 1330, 1332-33 (8th Cir. 1974)). Rule 20 is permissive, not 

mandatory, and so allowing a party to amend its complaint in order to add a party under Rule 20 

is a matter for this Court’s discretion. 

Under Federal Rule of Civil Procedure 15, a court should “freely give leave” to amend 

“when justice so requires.” FED. R. CIV. P. 15(a)(2). “[T]he thrust of Rule 15 is to reinforce the 

principle that cases should be tried on their merits rather than the technicalities of pleadings.” 

Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (internal citations and quotations 

omitted). Factors that courts should consider when determining whether to grant leave to amend 

include “[u]ndue 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....” Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 

484 (6th Cir. 1973). “Decisions as to when justice requires amendment are left to the sound 

discretion of the trial judge[.]” Robinson v. Michigan Consol. Gas Co. Inc., 918 F.2d 579, 591 

(6th Cir. 1990). 

A. 

Defendants first argue that Plaintiff’s motion for leave to amend should be denied 

because it is untimely. The Sixth Circuit has held that to deny a motion to amend as untimely, a 

court must also find “at least some significant showing of prejudice to the opponent.” Moore, 

790 F.2d at 562. “[D]elay alone, regardless of its length is not enough to bar [amendment] if the 

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other party is not prejudiced.” Ziegler v. Aukerman, 512 F.3d 777 at 786 (6th Cir. 2008) (citing 

Moore, 790 F.2d at 560, 562). 

“Prejudice” in the context of Rule 15 means more than the inconvenience of having to 

defend against a claim. See, e.g., Monahan v. N.Y.C. Dept. of Corr., 214 F.3d 275, 284 (2d Cir. 

2000). It requires something more substantial. Cases have held that, in some situations, the close 

of discovery is sufficient to warrant a finding of prejudice to the opponent. See R.S.W.W., Inc. v. 

City of Keego Harbor, 397 F.3d 427, 441 (6th Cir. 2005) (holding that the district court did not 

abuse its discretion in denying the plaintiff’s motion to amend its complaint to add new parties 

where the case had been pending for almost two years and discovery had closed); Duggins v. 

Steak ‘N Shake, Inc.195 F.3d 828, 834 (6th Cir. 1999) (affirming the district court’s denial of 

plaintiff’s motion to amend where discovery had closed, a motion for summary judgment had 

been filed, and the plaintiff had been aware of the basis for the new claim since filing the 

complaint); Coates v. Jurado, 2015 WL 1510400 at *2 (E.D.Mich. 2015) (stating that allowing 

the plaintiff to add a new defendant and a new claim would be unduly prejudicial where he had 

been aware of the basis of his proposed claims for over seven months and discovery had been 

closed for a month). In other cases, the close of discovery has not been in itself enough to 

demonstrate prejudice. See Moore, 790 F.2d 557 (holding that granting leave to amend after the 

close of discovery was not prejudicial where the plaintiff sought only to substitute an erroneous 

claim under 1983 for a claim under 1985 and rejection of the amendment would preclude the 

plaintiff’s opportunity to be heard on the merits). 

The present case was filed on March 1, 2015, less than eight months ago. To date, there 

have been no delays or extensions. Plaintiff claims that he did not discover facts in support of 

the alleged Monell claim until taking the depositions of Defendants on July 16, 2015. ECF No. 

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12 at 2. During those depositions, both Defendants allegedly testified as to their lack of Fourth 

Amendment training. Id. Plaintiff filed the current motion to amend less than two months after 

the depositions, and only a day after the close of discovery. Plaintiff’s motion to amend is thus 

timely, and Defendants have not shown that they will be unduly prejudiced by allowing Plaintiff 

to amend his complaint. 

B.

Defendant also argues that Plaintiff’s proposed amendment is futile. "A proposed 

amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss." 

Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (internal 

citation and quotation marks omitted). 

i. 

 A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that 

support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678, 

(2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the nonmovant’s favor and accepts the allegations of facts therein as true. See Lambert, 517 F.3d at 439. 

The pleader need not have provided “detailed factual allegations” to survive dismissal, but the 

“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

Iqbal, 556 U.S. at 678, (quoting Twombly, 550 U.S. at 570). 

ii. 

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 Plaintiff seeks to add a claim against Clare County and John Wilson in his official 

capacity as Clare County Sherriff under the principles set forth in Monell v. Department of Social 

Services of New York, 436 U.S. 658 (1978). In Monell, the Supreme Court held that 

municipalities are “persons” subject to suit under 42 U.S.C.A. § 1983. Monnell, 436 U.S. at 700-

01. Such a claim may only be brought when “execution of a government’s policy or custom, 

whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent 

official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 

Id. at 694. The Sixth Circuit has instructed that, to satisfy the requirements of Monell, a plaintiff 

“must identify the policy, connect the policy to the city itself and show that the particular injury 

was incurred because of the execution of that policy.” Garner v. Memphis Police Dept., 8 F.3d 

358, 364 (6th Cir. 1993) (internal citations and quotations omitted). 

Accordingly, to succeed on a Monell claim, a plaintiff first must allege that the 

municipality itself caused a constitutional tort. Monell, 436 U.S. 658 at 691. A municipality 

cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality 

cannot be held liable under § 1983 on a respondeat superior theory.” Id. 

 Second, a Plaintiff must show that the alleged conduct qualifies as a policy. Monnell 

municipal liability may attach where “the action that is alleged to be unconstitutional implements 

or executes a policy statement, ordinance, regulation, or decision officially adopted and 

promulgated by that body’s officers.” Id. at 690. Monell liability may also attach where a 

plaintiff alleges “constitutional deprivations visited pursuant to governmental ‘custom’ even 

though such a custom has not received formal approval through the body’s official 

decisionmaking channels.” Id. at 690-91. A plaintiff must claim that “a deliberate choice to 

follow a course of action is made from among various alternatives by the official or officials 

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responsible for establishing final policy with respect to the subject matter in question.” Pembaur 

v. City of Cincinnati, 475 U.S. 469, 483 (1986). 

 Third, a plaintiff must show causation. In other words, a plaintiff must connect the 

municipality’s policy to the particular injury alleged. 

 The Supreme Court has specifically held that a city can be liable under § 1983 for 

inadequate training of its employees. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388 

(1989). As a matter of law, “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ 

choice by a municipality – a ‘policy’ as defined by our prior cases – can a city be liable for such 

a failure under § 1983.” Id. at 388-89. The Court further instructed that liability may arise in 

cases where “in light of the duties assigned to specific officers or employees the need for more or 

different training is so obvious, and the inadequacy so likely to result in the violation of 

constitutional rights, that the policymakers of the city can reasonably be said to have been 

deliberately indifferent to the need.” Id. at 390. 

 The Sixth Circuit has instructed that a plaintiff must prove three distinct facts to proceed 

on a § 1983 claim based on inadequate training: (1) that a training program is inadequate to the 

tasks that the officers must perform; (2) that the inadequacy is the result of the city’s deliberate 

indifference; and (3) that the inadequacy is closely related to or actually caused the plaintiff's 

injury. See Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013) 

iii. 

 Plaintiff alleges that Clare County and John Wilson had a duty to adequately train deputy 

sheriffs “so as to avoid a policy, custom, or practice of violating the rights of citizens.” Id. at ¶¶ 

66-67. Plaintiff argues that Clare County and Wilson breached this duty by failing to adequately 

train Defendants Tilson and Humphrey regarding the Fourth Amendment. Id. at ¶¶ 70-71. 

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Specifically, Plaintiff alleges that Deputy Tilson had not received Fourth Amendment training 

since 1999 and Deputy Humphrey had not received Fourth Amendment training since his days in 

the police academy. Id. at ¶¶ 67-71. Plaintiff further claims that proposed Defendants Clare 

County and Sheriff Wilson knew or should have known of the widespread failure to train, and 

the likelihood that such failure would result in Fourth Amendment violations. Id. at ¶¶ 115-16. It 

is also alleged that this failure to train constitutes a policy under Monell, and that the policy 

amounted to deliberate indifference or deliberate misconduct causing Plaintiff’s injuries. Id. at ¶¶ 

110, 113. These allegations are sufficient to survive a motion to dismiss, and therefore the 

proposed amendment would not be futile. For these reasons, Plaintiff’s motion to amend will be 

granted. 

III. 

 It is therefore ORDERED that Plaintiff’s motion for Leave to File First Amended 

Complaint, ECF No. 15, is GRANTED. 

 It is further ORDERED that Plaintiff is DIRECTED to file his first amended complaint 

on or before November 9, 2015. 

 It is further ORDERED that the parties’ pending motions for summary judgment, ECF 

Nos. 18, 19, will be DENIED without prejudice. 

 It is further ORDERED that Defendants’ motion for leave to file exhibits in the 

traditional manner, ECF No. 26, is DENIED as moot. 

 It is further ORDERED that the parties are GRANTED LEAVE to file one additional 

motion for summary judgment each. 

 It is further ORDERED that the page limit on the parties’ subsequent motions for 

summary judgment is EXTENDED to 35 pages. 

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 It is further ORDERED that discovery will be REOPENED for the limited purpose of 

addressing Plaintiff’s newly added complaint. 

 It is further ORDERED that the scheduling order is accordingly EXTENDED as 

follows: 

Plaintiff’s Expert Disclosures: December 4, 2015

Defendant’s Expert Disclosures: January 5, 2016

Pretrial Disclosures: April 29, 2016

Second Settlement Conference: January 28, 2016 at 2:00 PM

Limited Discovery Cutoff: February 5, 2016

 Motions Challenging Experts Deadline: February 19, 2016

Dispositive Motion Deadline: March 7, 2016 

 Motions in Limine Deadline: May 18, 2016 

 Stipulation for Case Evaluation due: January 6, 2016

 Pretrial Order & Jury Instructions Due: June 7, 2016

 Final Pretrial Conference: June 14, 2016 at 3:00 PM

 Jury Trial: June 28, 2016 at 8:30 AM 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: November 5, 2015 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on November 5, 2015. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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