ESTATE OF MIKAL R. GAITHER, 

by and through Pearl Gaither, Personal

Representative,

Plaintiff,

 v.

DISTRICT OF COLUMBIA, et al.,

Defendants.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 Civil Action No. 03-01458 (CKK)

MEMORANDUM OPINION

(February 26, 2011)

Plaintiff Pearl Gaither (“Plaintiff”) commenced this action on July 1, 2003, as the

personal representative of the estate of Mikal R. Gaither. Named as defendants are the District of

Columbia, Odie Washington, Marvin L. Brown, Dennis Harrison, Zerline Brooks, Gounod

Toppin, and Joseph White (collectively, “Defendants”). Presently before the Court is Plaintiff’s

[201] Motion for Leave to File to [sic] Amended Complaint (“Motion to Amend”), which

Defendants have opposed. Based on the parties’ submissions, the attachments thereto, the

relevant authorities, and the record as a whole, the Court shall GRANT Plaintiff’s [201] Motion

to Amend.1

 While the Court renders its decision today on the record as a whole, its consideration 1

has focused on the following documents, listed in chronological order of their filing: Pl.’s Mem.

of Law in Supp. of Pl.’s Mot. to Amend Compl., Docket No. [201-1]; Pl.’s [Proposed] Third Am.

Compl. (“3d Am. Compl.”), Docket No. [201-2]; Defs.’ Mem. of P. & A. in Opp’n to Pl.’s Mot.

for Leave to File Am. Compl. (“Defs.’ Opp’n”), Docket No. [207]; Pl.’s Reply in Supp. of Mot.

to Amend Compl., Docket No. [210].
I. BACKGROUND

The Court assumes familiarity with its prior opinions in this action, which set forth in

detail the extensive history of this case, and shall therefore only address the factual and

procedural background necessary to address the discrete issues currently before the Court.

Plaintiff first commenced this action on July 1, 2003, as the personal representative of the

estate of Mikal R. Gaither (“Gaither”), who was fatally stabbed on December 14, 2002 while

incarcerated at the District of Columbia Central Detention Facility (the “Jail”). See Compl.,

Docket No. [1]. On July 21, 2003, before anyone had appeared as a defendant in this action,

Plaintiff filed an amended complaint as a matter of right. See Am. Compl., Docket No. [5]. 

Subsequently, upon Defendants’ motion and with Plaintiff’s consent, the action was stayed for

over three years—from October 8, 2003 through January 4, 2007—pending resolution of a

criminal investigation into the circumstances surrounding Gaither’s death. See Min. Order (Oct.

8, 2003); Min. Order (Jan. 4, 2007). 

Shortly after the stay was lifted, Plaintiff filed a second amended complaint, which

remains the current iteration of the complaint in this action. See Second Am. Compl. (“2d Am.

Compl.”), Docket No. [34]. Therein, Plaintiff asserted three causes of action against Defendants. 

In addition to claims for negligence/survival and wrongful death, which are not immediately

relevant here, Plaintiff asserted a claim pursuant to 42 U.S.C. § 1983 (“Section 1983”),

predicated upon alleged violations of Gaither’s rights under the Fifth Amendment. 2d Am.

Compl. ¶¶ 62-68. More specifically, Plaintiff alleged that Defendants subjected Gaither to a

“serious and unreasonable risk of violent injury as a result of the unconstitutional conditions at

the Jail that were well-known,” including “pervasive violence; overcrowding; a shortage of

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necessary correctional officers; inadequate training of correctional officers; negligent supervision

of correctional officers; inadequate policies, procedures, and practices for critical staffing,

classification, and security; and failure to enforce such policies, procedures, and practices relating

to critical staffing and security that were in effect.” Id. ¶ 63. According to Plaintiff, Defendants’

“ongoing failure to address these unconstitutionally dangerous conditions was the result of a

conscious and deliberate decision or of reckless disregard for the safety of inmates at the Jail,”

and violated Gaither’s rights under the Fifth Amendment. Id. ¶¶ 64-66, 69-71. 

On September 8, 2009, the Court issued a 61-page decision resolving the parties’

respective cross-motions for summary judgment. See Estate of Gaither ex rel. Gaither v. District

of Columbia, 655 F. Supp. 2d 69 (D.D.C. 2009). Therein, the Court chastised both parties for

failing to articulate the legal principles governing Plaintiff’s Section 1983 claim. Id. at 85. Most

notably, the Court observed that, while the “Constitution imposes certain obligations on prison

officials to ensure the health and safety of incarcerated individuals, whether that right is

guaranteed under the Fifth Amendment (as Plaintiff alleges) or under the Eighth Amendment

depends upon the status of the incarcerated individual—a point that neither party [] addressed.” 

Id. The Court explained:

It is well established that the Eighth Amendment’s prohibition on

“cruel and unusual punishment” imposes various obligations upon

prison officials, including as is relevant to the case at hand, a duty to

protect prisoners from violence at the hands of other prisoners. It is

equally well settled, however, that the Eighth Amendment’s

prohibition applies only to persons who are subject to “punishment”

which excludes pretrial detainees who have not been adjudicated as

guilty of any crime and are therefore not subject to “punishment.” 

Accordingly, courts have recognized that pretrial detainees have an

independent due-process right under the Fifth and Fourteenth

Amendments to humane conditions while incarcerated. Although the

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exact contours of a pretrial detainee’s right under the Fifth

Amendment have not yet been established, it is clear that the [Fifth]

Amendment provides a pretrial detainee [protections] at least as great

as the analogous Eighth Amendment right. Thus, although the rights

under the Fifth and Eighth Amendments are comparable, it appears

that the Fifth Amendment may provide a greater degree of protection

to pretrial detainees who are not yet subject to punishment of any

kind.

Id. at 85-86 (internal citations omitted and quotation marks and notations altered). In light of this

distinction, the question of whether “Gaither—as an individual who had already pled guilty, but

had not yet been sentenced—[was] a pretrial detainee, whose rights are guaranteed under the

Fifth Amendment, or [was] [] a convicted inmate, whose rights are guaranteed under the Eighth

Amendment,” was of potentially constitutional significance. Id. at 86. Indeed, if an individual,

like Gaither, who has pled guilty but has not yet been sentenced should be treated as a convicted

inmate, rather than a pretrial detainee, Plaintiff’s claim that Defendants violated Gaither’s Fifth

Amendment rights would be “on shaky ground.” Id. at 87. But because the parties completely

failed to address Gaither’s detention status, and because the same basic standard of “deliberate

indifference” is generally applied to both Fifth and Eighth Amendment claims, the Court

declined to resolve the question of Gaither’s status “on the inadequate record [then] before it”

and proceeded to address in detail the factual disputes that otherwise precluded summary

judgment on Plaintiff’s Section 1983 claim. Id. 

Immediately on the heels of the Court’s decision, the parties filed motions for

reconsideration and proceeded to brief those motions. See Defs.’ Mot. for Recons., Docket No.

[195]; Pl.’s Mot. for Partial Recons., Docket No. [196]. Then, on October 20, 2009, six weeks

after the issuance of the Court’s decision, Plaintiff filed the present [201] Motion to Amend,

through which Plaintiff seeks leave to amend her complaint in order to plead her Section 1983

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claim in the alternative under the Fifth and Eighth Amendments. See generally 3d Am. Compl. 2

II. LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a

matter of course within twenty-one days after service or within twenty-one days after service of a

responsive pleading. Fed. R. Civ. P. 15(a)(1). Where, as here, a party seeks to amend its

pleadings outside that time period, they may do so only with the opposing party’s written consent

or the district court’s leave. Fed. R. Civ. P. 15(a)(2). The decision whether to grant leave to

amend a complaint is within the discretion of the district court, but leave “should be freely given

unless there is a good reason, such as futility, to the contrary.” Willoughby v. Potomac Elec.

Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996), cert. denied, 520 U.S. 1197 (1997). As the

Supreme Court has observed:

If the underlying facts or circumstances relied upon by a plaintiff may

be a proper subject of relief, he ought to be afforded an opportunity

to test his claim on the merits. In the absence of any apparent or

declared reason—such as undue delay, bad faith or dilatorymotive on

the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of

amendment, etc.—the leave sought should, as the rules require, be

“freely given.”

 Plaintiff also proposes to omit references to a series of John Doe Defendants, who were 2

voluntarily dismissed from this action after the Court issued its decision resolving the parties’

respective cross-motions for summary judgment. See Notice of Dismissal of Pl.’s Claims

Against John Does 1-20, Docket No. [198]. Although the Local Rules of the United States

District Court for the District of Columbia require parties to “narrow the areas of disagreement”

before filing or opposing non-dispositive motions, Local Rule LCvR 7(m), Defendants fail to

address the component of Plaintiff’s motion in its opposition, and the Court shall therefore treat

it as conceded. See Phrasavang v. Deutsche Bank, 656 F. Supp. 2d 196, 201 (D.D.C. 2009)

(where party fails to respond to arguments in opposition papers, the district court may treat them

as conceded) (citing Fed. Deposit Ins. Co. v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997)).

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

merits of Plaintiff’s Motion to Amend.

III. DISCUSSION

Defendants proffer three arguments in opposition to the present Motion to Amend: first,

Defendants contend that Plaintiff has unreasonably delayed in seeking leave to amend; second

Defendants assert that they would be unduly prejudiced were leave to amend granted; third, and

finally, Defendants argue that amendment would be futile because Plaintiff has failed to state a

plausible claim for relief. The Court addresses each argument in turn.

A. The Timing of Plaintiff’s Motion to Amend Does Not Warrant Denying the

Relief Sought

Defendants first characterize Plaintiff’s delay in seeking leave to amend as “undue and

inexcusable,” and intimate that it alone justifies denying leave to amend. Defs.’ Opp’n at 2. 

However, Defendants concede, as they must, that the mere passage of time does not preclude

amendment—the delay must result in some prejudice to the judicial system or the opposing

party. Indeed, the United States Court of Appeals for the District of Columbia Circuit has

consistently held that “[w]here an amendment would do no more than clarify legal theories or

make technical corrections . . . delay, without a showing of prejudice, is not a sufficient ground

for denying the motion.” Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir. 1999). As explained

in greater detail below, see infra Part III.B, Defendants cannot credibly claim that Plaintiff seeks

to inject a fresh claim or new allegations into this action or that amendment would cause them

any undue prejudice; rather, properly understood, Plaintiff’s proposed amendment would merely

clarify the theories upon which she relies without expanding or otherwise altering the scope of

this action in any meaningful manner. 

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In any event, by focusing on the overall duration of this action and failing to place

Plaintiff’s prior amendments in their proper context, Defendants misconstrue the magnitude of

the alleged delay, to the extent it may even be characterized as such. Plaintiff first amended her

complaint in the earliest stages of this action, before any defendant had entered an appearance;

and she amended her complaint a second time immediately after the three-year stay in this action

was lifted, a stay which was clearly requested because Defendants believed that the resolution of

the criminal investigation into Gaither’s death would have a bearing on the substance of this

action. See supra Part I. Only thereafter did the parties proceed to conduct discovery. 

Meanwhile, as previously observed by the Court, it is clear that the legal ramifications emanating

from Gaither’s detention status never crystallized for the parties prior to the filing of their

respective cross-motions for summary judgment. See Estate of Gaither, 655 F. Supp. 2d at 85-

87. As such, while Plaintiff certainly could have acted sooner, this simply is not a case where a

party has made successive post-discovery amendments and yet failed to remedy clear gaps or

defects in its pleadings. Indeed, Plaintiff acted with reasonable promptness once potential

defects in her Section 1983 claim were brought out into the open, filing the present Motion to

Amend within weeks of the Court’s decision. Under the circumstances of this case, the timing of

Plaintiff’s Motion to Amend does not warrant denying the relief sought.

B. Defendants Have Failed to Establish that They Would Be Unduly Prejudiced

By Amendment

Defendants next assert that they would be prejudiced by the “addition of a new claim . . .

when discovery is essentially complete and trial strategy already planned.” Defs.’ Opp’n at 3. 

For at least two reasons, the argument is unavailing. 

First, Plaintiff does not, strictly speaking, seek to add a new claim to this action; her

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claim still arises under Section 1983, the principal difference being that Plaintiff seeks to plead

the predicate constitutional violation in the alternative under both the Fifth and Eighth

Amendments. See 3d Am. Compl. ¶¶ 58-70. More to the point, the underlying conduct

challenged by Plaintiff under the Fifth and Eighth Amendments is identical; in both cases,

Plaintiff contends that Defendants were deliberately indifferent to and recklessly disregarded the

same substantial reasonable risk of harm to Gaither. Id. The factual allegations are coterminous

and, as previously observed by the Court, the same basic standard of “deliberate indifference”

would apply to both claims. See Estate of Gaither, 655 F. Supp. 2d at 87. In other words,

Plaintiff seeks to “clarify [the] legal theories” upon which she will rely in prosecuting this action

and does not seek to inject an entirely new claim at the advanced stage of these proceedings. 

Harrison, 174 F.3d at 253. Amendments that do not radically alter the scope and nature of the

action, such as the one now proposed, are especially favored. 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 granted

employee’s motion to amend complaint to substitute the Rehabilitation Act for the American

with Disabilities Act as basis for disability discrimination claim, where “[c]laims and defenses

under the two statutes [were] virtually identical”).

Second, because amendments are to be freely given absent good reason, Defendants bear

the burden of adducing a colorable basis for denying leave to amend. Abdullah v. Washington,

530 F. Supp. 2d 112, 115 (D.D.C. 2008). However, Defendants’ arguments as to prejudice

reduce to little more than generalities. Most notably, Defendants make absolutely no attempt to

articulate what additional discovery would be required to meaningfully respond to a claim arising

under the Eighth Amendment, and in light of the fact that the challenged conduct underlying such

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a claim would be coterminous with the conduct challenged under the Fifth Amendment, the

omission is fatal. See City of Moundridge v. Exxon Mobil Corp., 250 F.R.D. 1, 6 (D.D.C. 2008)

(“Undue prejudice is not mere harm to the non-movant but a denial of the opportunity to present

facts or evidence which would have been offered had the amendment been timely.”) (internal

quotation marks and notations omitted). Similarly, even crediting Defendants’ dubious assertion

that their “trial strategy is already planned” when a pre-trial conference has not even been

scheduled, Defs.’ Opp’n at 3, the Court fails to see—and Defendants certainly fail to

articulate—how permitting Plaintiff to assert an alternative legal theory for her Section 1983

claim would meaningfully alter the evidence to be presented at trial. 

C. Defendants Have Failed to Show that Amendment Would Be Futile

In a last-ditch effort, Defendants assert that leave to amend should be denied because

amendment would be futile. Defs.’ Opp’n at 4. Incredibly, Defendants posit that the proposed

amended complaint merely restates the same facts that were set forth in the previous iteration of

the complaint, and contends that those allegations are so “sweeping” and “conclusory” that they

cannot survive the pleading requirements articulated by the Supreme Court in Ashcroft v. Iqbal,

__ U.S. __, 129 S. Ct. 1937 (2009). In the course of two paragraphs, Defendants restate a host of

the factual allegations in the proposed amended complaint seriatim and then argue, with minimal

explication, that those factual allegations fail to state a “plausible” claim for relief under the

Eighth Amendment. Defs.’ Opp’n at 6-8. The argument lacks merit given that, as previously

explained, this Court already held that these identical factual allegations were sufficient to

survive summary judgment under the same “deliberate indifference” standard that would apply to

Plaintiff’s Section 1983 claim were it analyzed under the rubric of the Eighth Amendment. See

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Estate of Gaither, 655 F. Supp. 2d at 88-94. Regardless, whatever the ultimate merits of

Plaintiff’s claim, it is clear that Defendants have utterly failed to show that it would be futile to

permit amendment. Plaintiff shall therefore be “afforded an opportunity to test [her] claim on the

merits.” Foman, 371 U.S. at 182.

IV. CONCLUSION

For the foregoing reasons, the Court shall GRANT Plaintiff’s [201] Motion to Amend. 

An appropriate Order accompanies this Memorandum Opinion.

Date: February 26, 2011

 /s/ 

COLLEEN KOLLAR-KOTELLY

United States District Judge

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