ESTATE OF MI KAL R. GAI THER, by and through Pearl Ga ither, Persona l Represe ntative, Plaintif f ,

v. DI STRI CT OF COLUMBIA, et al. , Defendants

. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 03-01458 ( CKK)

MEMORAN DUM OP INION (F ebrua ry 26, 2011) Plaintiff Pearl Ga ither (“ Plaintiff”) c ommenced this ac tion on J uly 1, 2003, as the persona l repre sentative of the estate of Mikal R. Gaither. Na

med as de fenda

nts are the District of Columbi a, Odie Washing ton, Marvin L . Br own, Dennis Ha rrison, Z erline B rooks, Gounod Toppin, and Jos eph White (collec tively , “De fenda nts”). Prese ntly

befor e the Court is Plaintiff’s [201] Motion for L eave to File to [sic] Amended Complaint (“Motion to Amend” ), which Def endants have opposed. B ased on the parties’ submissi ons, the attac hments thereto, the rele vant authorities, and the rec ord as a whole, the Court shall GRANT Plaintiff’s [201] Mot ion to Amend. 1

Whil e the Court re nders its dec ision today on the re cord a s a whole, its consider ation 1 has foc used on the followingdocuments, listed in chronolog ical orde r of their filing: Pl.’s Mem. of L aw in Supp. of Pl.’s Mot. to Amend Compl ., Docke t No. [201-1] ; Pl.’s [ Proposed] Third Am. Compl. (“3d Am. Compl.”), Docke t No. [201-2] ; Defs.’ Mem. of P. & A . in Opp’n to Pl.’s Mot. for L eave to File Am. Compl. (“De fs.’ Opp’ n”), D ocket No. [207]; P l.’s Reply in Supp. of Mot. to Amend Compl., Docket No. [210]

.I. BACKG ROUND

The Court assumes f

amiliarity with its prior opinions i n this action, which set for th in detail the extensive history of this case , and shall there fore only addre ss the fac tual and proce dural ba ckg round nec essar y to addre ss the discrete issues curr ently befor e the Court. Plaintiff first commence d this action on J uly 1, 2003, as the pe rsonal re prese ntative of the estate of Mikal R. Gaither (“ Gaither ”), who was fatally stabbed on De cembe r 14, 2002 while incar cer ated a

t the District of Columbia Central Dete ntion Fac ility (the “ J ail”). SeeCompl., Docke t No. [1] . On J uly

21, 2003, befor e anyone had a ppear ed as a

defe ndant in this action, Plaintiff filed an amended c omplaint as a matter of rig ht. SeeAm. Compl., Docket No. [5]

. Subsequently , upon Def

endants’ motion and with Plaintiff’s conse nt, the action wa s stay ed for over thre e y ear s—from Oc tober 8, 2003 throug h J anuar y 4, 2007—pendingresolution of a criminal investig ation into the circumstanc es surroundingGaither ’s death. SeeMin. Order (Oc t. 8, 2003); Min. Order

(Jan. 4, 2007). Shortly afte r the stay

was lifted, Plaintiff filed a second a mended c omplaint, which

rema ins the curr ent iteration of the complaint in this action. SeeSecond Am. Compl. (“2d Am. Compl.”), Docke t No. [34] . There in, Plainti ff a sserted thre e ca uses of a ction ag ainst Defe ndants. I n addition to claims for neg lige nce/surviva l and wrong ful death, which ar e not immediately rele vant her e, Plaintiff asser ted a c laim pursuant to 42 U.S.C. § 1983 (“Section 1983”) , predic ated upon a lleg ed violations of Gaither ’s rig hts under the F ifth Amendment. 2d Am. Compl. ¶¶ 62- 68. More spe cifica lly , Plaintiff alleg ed that De fenda nts subjected Ga ither to a “ser ious and unrea sonable risk of violent injury as a r esult of the unconstitutional conditions at the J ail that wer e we ll-known,” including“per vasive violenc e; over crow ding; a shortag e of

2nece ssary

corr ectional of

fice rs; inadequate trainingof cor rec tional office rs; neg lige nt supervision of cor rec tional office rs; inadequate policies, proc edure s, and pra ctices f or cr itical staffing , classification, and secur ity ; and fa ilure to enfor ce suc h policies, proce dures, a nd prac tices re lating to critical staf

fing and sec urity

that wer e in ef

fec t.” Id. ¶ 63. Ac cordingto Plainti ff, De fenda nts’ “ong oing f

ailure to a ddress these unconstitutionally dang erous c onditions was the result of a conscious and de liberate decision or of rec kless disreg ard f

or the saf ety of inmates at the Jail,” and violated Ga ither’s rig hts under the F ifth Amendment. Id. ¶¶ 64- 66, 69-71. On September

8, 2009, the Court issued a 61-pa g e dec ision resolving the parties’ respe ctive cr oss-motions for summary judgme nt. See Estate of Gaither ex re l. Gaither v. District of Columbia , 655 F. Supp. 2d 69 (D.D .C. 2009). There in, the Court chastised both par ties for failing to articulate the leg al principles g overningPlaintiff’s Section 1983 claim. Id. at 85. Most notably , the Court observe d that, while the “Constitution im poses ce rtain oblig ations on prison officia ls to ensure the he alth and saf ety of inca rce rate d individuals, whether that r ight is g uara nteed unde r the F ifth Amendment (a s Plainti ff a lleg es) or under the Eig hth Amendment depends upon the status of the inca rce rate d individual—a point that neither par ty [] addre ssed.” Id. The Court explained:

I t is well establ i shed that the Eig hth Amendment’s prohibition on “cr uel and unusual punishment” imposes various obligatio ns upon prison officia ls, including as is rele vant to the case at hand, a duty to protec t pr isoners from violence at the hands of other pr isoners. It is equally well settled, howeve r, that the Eig hth Amendme n t’s prohibition applies only to persons who are subject to “punishment” which excludes pre trial detaine es who have not been adjudicate d as gu i l t y of any crime and are there fore not subject to “punishment. ” Acc ording ly , courts have rec og nized that pretria l d etainees have an independe nt d u e-pr ocess rig ht under the Fifth and Four teenth Amendments to humane conditions while incar cer ated. Although the

3exact contours of a pretria l detainee ’s rig ht under the Fifth Amendment have not yet been established, it is clea r that the [Fifth] Amendment provides a pretria l detainee [protections] at least as g reat as the analog ous Eig hth Amendment rig ht. Thus, althoug h the rig hts under the Fifth and Eig hth Amendments are compar able, it appea rs that the Fifth Amendment may provide a g reater deg ree of protec tion to pretria l detainee s who are n o t y et subject to punishment of any kind. Id. at 85-86 (inter

nal citations omitted and quotation marks and notations altered) . In light of this distinction, t he question of whe ther “ Gaither —as an individual who ha d alre ady pled guilty , but had not y et bee n sentenc ed—[was] a pretria l detainee , whose rig hts are guara nteed unde r the Fifth Ame ndment, or [was] [ ] a convicted inmate, whose rights are g uara nteed unde r the Eig hth Amendment,” w as of potentially constitutional significa

nce. Id. at 86. Indeed, if

an individual, like Gaither , who has pled guilty but has not y et bee n sentenc ed should be tre ated a s a convic ted inmate, rather than a

pretria l detainee , Plaintiff’s claim that Def endants violated G aither’ s Fifth Amendment rig hts would be “on shaky g round.” Id. at 87. B ut beca use the pa rties completely failed to a ddress Ga ither’s de tention status, and beca use the same basic standa rd of “ delibera

te indiffer ence ” is g ener ally applied to both Fifth a

nd Eig hth Amendment claims, the Court declined to r esolve the que stion of Gaither’ s status “on the inade quate r ecor d [t hen] before it” and proc eede d to addre ss in detail the fac tual disputes that otherwise pr eclude d summary judgme nt on Plainti ff’ s Section 1983 claim. Id. I mmediately

on the hee ls of the Court’s dec ision, the parties filed motions for

rec onsideration and pr ocee ded to brief those motions. SeeDef

s.’ Mot. for Rec ons., Docke t No. [195] ; Pl.’s Mot . for Par

tial Recons., Docke t No. [196] . Then, on Oc tober 20, 2009, six weeks afte r the issuanc e of the Court’s decision, Plaintiff filed the pr esent [201] Motion to Amend, throug h which Plaintiff see ks leave to amend her complaint in order to plea d her Sec tion 1983 4claim in the alter native under

the Fif th and Eig hth Amendments. See ge nerally3d Am. Compl. 2 II. LEGAL STANDARD Under the Fe dera l Rules of Civil Procedur e, a pa rty may amend its pleading s once a s a matter of c ourse within twenty -one da y s after service or within twenty -one da y s after service of a responsive ple ading . Fe d. R. Civ. P . 15(a) (1). Where , as her e, a pa rty seeks to ame nd its pleading s outside that time period, they may do so only

with the opposing pa

rty ’s written c onsent or the district cour

t’s leave . Fe d. R. Civ. P . 15(a) (2). The decision whe ther to g rant lea ve to amend a complaint is within t he discre tion of the district court, but leave “should be fr eely g iven unless there is a g ood rea son, such as futility , to the contra ry .” W illoughby v. Potomac Ele c. Power Co. , 100 F.3d 999, 1003 ( D.C. Cir. 1996), cert. de nied , 520 U.S. 1197 (1997). As the Supreme Court has obse rved:

I f the underlying fac ts or circ umstances relied upon by a plaintiff may be a proper subject of relief , he ought to be afforde d an opportunit y to test his claim o n the merits. In the absenc e of any appar ent or decla red rea son—such as undue delay , bad faith or dilatory motive on the part of the m o v ant, repe ated failure to cure defic iencies by amendments previously allowed, undue preju dice to the opposing party by virtue of all owanc e of the amendment, futility of amendment, etc.—the leave soug ht s h o u l d , as the rules require , be “fr eely g iven.”

Plaintiff also proposes to omit refe renc es to a ser ies of John Doe Defe ndants, who we re 2 voluntarily

dismiss ed fr om this action after the Court issued its decision resolving the par ties’ respe ctive cr oss-motions for summary judgme nt. SeeNotice of Dismissal of Pl.’s C laims Ag ainst J ohn Does 1-20, D ocket No. [198]. Although the L ocal Rules of the United States District Court for the District of Columbi a re quire pa

rties to “nar

row the a rea s of disag ree ment” befor e filing or opposing non-dispositive moti ons, L ocal Rule L CvR 7(m), Defe ndants fail to addre ss the component of Plaintiff’s motion in its opposi tion, and the Court shall theref ore tre at it as conce ded. See Phrasavang v. D eutscheBank, 656 F. Supp. 2d 196, 201 (D.D .C. 2009) (whe re pa rty fails to respond to ar g uments in oppositi on paper s, the district court may treat them as conc eded) (citing Fed. De posit Ins. Co. v. Bender , 127 F.3d 58, 68 ( D.C. Cir. 1997)).

5Foman v. D avis , 371 U.S. 178, 182 (1962). With these principles in mind, the Court turns to the

merits of Plaintiff’s Motion to Amend. III. DISCUSS ION Def endants prof

fer three arguments in oppositi on to the prese nt Motion t o Amend: first, Def endants c ontend that Plaintiff has unre asonably delayed in see king le ave to amend; second Def endants a ssert that they

would be unduly

prejudice d wer e leave to amend grante d; third, and finally , Def

endants a rgue that ame ndment would be futile be cause Plaintiff has failed to state a plausible claim for

relief . The Court addr esses e ach a rgument in turn. A. The Tim ing of Plain tiff’s Motion to A m end Does Not Warrant Denying th e Relief Sought Def endants fir st chara cter ize Pl aintiff’s de lay in seekingleave to amend as “ undue and inexcusable,” a

nd intimate that it alone justifies denying le ave to amend. Def s.’ Opp’n at 2. Howeve r, De fenda

nts conce de, as the y

must, that the mere pa ssag e of time doe s not preclude amendment—the de lay

must result in some prejudice to the judicia l sy stem or the opposing party . I ndeed, the United States Court of Appea ls for the District of Columbia Circuit has consistently

held that “[w]here a

n amendment would do no more than clar ify leg al theorie s or make tec hnical cor

rec tions . . . delay , without a showing of pre judice, is not a suffic ient g round for de nying the motion.” Harrison v. Rubin , 174 F.3d 249, 253 ( D.C. Cir. 1999). As explained in gr eate r deta il below, see infra Part I I I .B, D efe ndants ca nnot cre dibly

claim that Plaintiff seeks to inject a fr esh cla im or new a lleg ations into thi s action or that amendment would ca use them any undue pre

judice; rather, prope rly

understood, Plaintiff’s propose d amendment would mer ely clar ify the theorie s upon which she r elies without expanding or othe rwise a ltering the scope of this action in any

meaning ful manner

. 6I n any event, by focusingon the over all duration of this ac tion and failing to place Plaintiff’s prior ame ndments in their proper context, Defenda

nts misconstrue the mag nitude of the alleg ed dela

y , to the extent it may

even be char acte rized as such. Plaintiff first ame nded her complaint in the ear liest stage s of this action, befor e any defe ndant had e ntere d an appe ara nce; and she a mended he r complaint a se cond time immediately afte r the thre e-year

stay in this action was lifted, a

stay which wa s clea

rly reque sted bec ause D efe ndants believe d that the re solution of the cr iminal investigation into Gaither’ s death would have a be aringon the substance of this action. See supra Part I . Only there afte r did the par

ties proce ed to conduc t discovery

. Meanwhile, as pre viously observe d by

the Court, it is clear that the le g al ramifications emanating from Ga ither’s de tention status never c ry stalliz ed for the par ties prior to the filing of their respe ctive cr oss-motions for summary judgme nt. See Estate of Gaither , 655 F. Supp. 2d at 85- 87. As such, while Plaintiff ce rtainly could have acte d sooner, this simply is not a case wher e a party has made succe ssive post-discovery amendments a

nd y et fa iled to remedy

clea r g aps or defe cts in its pleadings. Indeed, Plaintiff a cted with re asonable promptness once potential defe cts in her Sec tion 1983 claim were broug ht out into t he open, f iling the pr esent Motion to Amend within wee ks of the Court’s dec ision. Under the c ircumstance s of this case, the timing of Plaintiff’s Motion to Amend does not warr ant deny ing the relief

soug ht. B. Def

endants H

ave Failed to Establish that Th ey Would Be Unduly Prejudiced By Am endm ent Def endants ne x t assert that they would be pre

judiced by

the “a ddition of a new c laim . . . when discove ry

is essentially

complete a

nd trial strategy

alre ady planned.” Def

s.’ Opp’n at 3. For at least two re asons, the ar g ument is unavailing

. First, Plaintiff does not, strictly speaking , seek to a dd a new claim to this action; her 7claim still arises under Sec tion 1983, the principal diffe renc e being that Plaintiff seeks to plead the pre dicate c onstitut ional violation in the alternative unde r both the F ifth and Eig hth Amendments. See3d Am. Compl. ¶¶ 58-70. More to the point, the unde rly ing c onduct challeng ed by

Plaintiff under the F ifth and Eig hth Amendments is identical; in both cases, Plaintiff contends that De fenda nts were delibera

tely indiffer ent to and re cklessly disreg arde d the same substantial re asonable risk of har m to Gaither. Id. The fa ctual alleg ations are coter minous and, as pr eviously

observe d by

the Court, the same ba sic standar d of “de liberate indiffer ence ” would apply

to both claims. See Estate of Gaither , 655 F. Supp. 2d at 87. I n other wor ds, Plaintiff seeks to “c larify

[t he] leg al theorie s” upon which she will rely in prosecutingthis action and does not see k to inject an entire ly new c laim at the adva

nced sta g e of the se proc eeding s. Harrison , 174 F.3d a

t 253. Amendments that do not radica lly alter the scope a

nd nature of the action, such a s the one now pr oposed, ar e espe cially favor ed. Smith v. Cafe Asia , 598 F. Supp. 2d 45, 58 (D.D.C. 2009); see also Harrison , 174 F.3d at 253 (district court should have g rante d employ ee’ s motion t o amend c omplaint to subst itute the Rehabilitation Act for the Americ an with Disabiliti es Ac t as basis for disability discrimination claim, wher e “[c]laims and defe nses under the two statutes [were] virtually identical”)

. Second, bec ause a

mendments are to be fre ely g iven abse nt good r eason, D efe ndants bea r the burde n of adduc ing a

colora ble basis for de nying le ave to amend. Abdullah v. W ashington , 530 F. Supp. 2d 112, 115 (D.D .C. 2008). Howeve r, De fenda nts’ arguments as to prejudice reduc e to little more than g ener alities. Most notably , Def endants make absolutely

no attempt to articulate what a dditional discovery would be re quired to mea ningf ully respond to a c laim arising under the Eig hth Amendment, and in lig ht of the fa ct that the cha lleng ed conduc t underlying suc h

8a cla im would be coter minous with t he conduc t challeng ed under the Fif th Amendment, the omission i s fatal. See City of Moundridge v. Exx on Mobil Corp. , 250 F.R.D. 1, 6 (D .D.C. 2008) (“U ndue pre

judice is not mere ha

rm to the non-movant but a de nial of the opportunity to present fac ts or evidenc e which w ould have be en off ere d had the amendment bee n timely .”) ( internal quotation marks and notations omitted). Simil arly , even c rediting Def endants’ dubious a ssertion that their “tria l strateg y

is alrea dy

planned” when a

pre- trial confe renc e has not e ven bee n schedule d, Def

s.’ Opp’n at 3, the Court fails to see—a nd Def endants c erta inly

fail to articulate—how per

mitti ng Plaintiff to assert an a lternative le g al theory for he r Section 1983 claim would meaning fully alter the evidenc e to be pr esente d at trial. C. Def

endants H

ave Failed to Show t

hat A m endm ent Woul

d Be Futile I n a last-ditch e ffor

t, Defe ndants asser

t that leave to amend should be denie d beca use amendment would be futile. Def s.’ Opp’n at 4. I ncre dibly , Def endants posit that the proposed amende d complaint mere ly restate s the same f

acts that we re se t forth in the pre vious iteration of the complaint, and c ontends that those alleg ations are so “swee ping” and “c onclusory” that they cannot survive the pleadingrequire ments articulate d by the Supreme Court in Ashcroft v. Iqbal , __ U.S. __, 129 S. C t. 1937 (2009). I n the cour se of two pa

ragraphs, De fenda

nts restate a

host of the fa ctual alleg ations in the proposed amended c omplaint seriatim and then a rgue, with minimal expli cation, that those fa ctual alleg ations fail to state a “ plausible” c laim for re lief under the Eig hth Amendment. Def s.’ Opp’n at 6-8. The a

rgument lacks mer it given that, as previously explained, this C ourt alre ady held that these ide ntical fa ctual alleg ations were sufficie nt to survive summary judgme nt under the same “ deliberate indiffer ence ” standa rd that would apply

to Plaintiff’s Section 1983 claim wer e it analy zed under the r

ubric of the Eig hth Amendment. See

9Estate of Gaither , 655 F. Supp. 2d at 88-94. Reg ardle ss, whateve r the ultimate merits of

Plaintiff’s claim, it is clear that Defe ndants have utterly failed to show that it would be f utile to permit amendme nt. Plainti ff sha ll therefor e be “ aff orded a n opportunity

to test [ her] claim on the merits.” Foman , 371 U.S. at 182. IV. CONCLUSION For the fore g oing r easons, the Court sha ll GRANT Plaintiff’s [201] Motion to Amend. An appr opriate O rder

acc ompanies this Memorandum Opinion.

Date: Fe bruar

y 26, 2011 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

10