Williams v. Miniard

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

QIAN WILLIAMS, Case No. 1:22-cv-1

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

CHRIS MINIARD, et al., ORDER AND REPORT AND

Defendants. RECOMMENDATION

On October 21, 2021, incarcerated plaintiff Qian Williams initiated a civil rights action in

the Butler County, Ohio Court of Common Pleas. (See Doc. 1-1). Plaintiff sued Butler County,

Ohio Sheriff Richard K. Jones and deputy sheriff Chris Miniard for state and federal law

violations based on tight handcuffing while plaintiff was a federal pretrial detainee on September

13, 2019. (See id.; Doc. 3). On January 3, 2022, defendants removed the action to this Court.

(Doc. 1). This matter is before the Court on numerous motions:

• Defendants’ motion to strike reply in support of plaintiff’s first motion for leave to

depose (Doc. 36).

• Plaintiff’s second motion for leave to depose (Doc. 37) and defendants’ response (Doc.

41).

• Plaintiff’s motion for additional discovery pursuant to Fed. R. Civ. P. 56(d) (Doc. 39),

defendants’ response (Doc. 45), and plaintiff’s reply (Doc. 54).

• Plaintiff’s motions to amend complaint (Docs. 42 and 47), defendants’ response (Doc.

52), and plaintiff’s reply (Doc. 58).

• Plaintiff’s motion to amend his motion for summary judgment (Doc. 44), defendants’

response (Doc. 51), and plaintiff’s reply (Doc. 58).

• Defendants’ motion to strike plaintiff’s reply and statement of proposed undisputed facts

in support of his motion for summary judgment (Doc. 50).

• Plaintiff’s “Motion to Suppres[s] deposition or Amend Statement” (Doc. 53) and

defendants’ response (Doc. 57); plaintiff’s motions to “Suppres[s] deposition or Amend

Statement” (Doc. 60) and “Suppress Deposition on August 30, 2022” (Doc. 61) and

defendants’ response (Doc. 63).

• Plaintiff’s second motion for additional discovery pursuant to Fed. R. Civ. P. 56(d) (Doc.

55)1 and defendants’ response (Doc. 56).

• Plaintiff’s “Motion to grant Amendments Reply to Defendants[’] opposition” (Doc. 59)

and defendants’ response (Doc. 62).

I. Discovery Issues (Docs. 36, 37)

On August 26, 2022, the Court issued an Order extending the discovery deadline from

August 30, 2022 to September 15, 2022 but retaining a dispositive motion deadline of September

30, 2022. (Doc. 26). On September 14, 2022, the Court issued an Order denying plaintiff’s

motion for leave to depose defendants and further extend case deadlines. (Doc. 30).

Notwithstanding that Order, plaintiff filed a reply to his motion for leave to depose defendants,

in which he alleged that defendants evaded fully responding to his June 21, 2022 interrogatory

no. 11.2 (Doc. 35). Defendants moved to strike plaintiff’s reply (Doc. 35) as moot; argued that

their discovery responses were appropriate; and contended there was no good cause for an

extension. (Doc. 36).

Plaintiff then renewed his motion—this time seeking leave to depose defendants, thirteen

detainees/inmates, and an unspecified number of officers—arguing that he had not been provided

with a useable list of detainee/inmate names responsive to his interrogatory until October 4,

2022. (Doc. 37). Attached to plaintiff’s renewed motion is a handwritten letter dated August 16,

2022 from plaintiff to defendants’ counsel, in which plaintiff requests the first names and contact

information for the detainees/inmates provided and only the officers present at the time of the

use of force at issue. (Doc. 37 at PAGEID 428-29). Defendants opposed this renewed motion,

1 This motion is identical to plaintiff’s first such motion, except that the supporting declaration includes several

additional paragraphs. (Compare Doc. 39 at PAGEID 442-43 with Doc. 55 at PAGEID 634-37).

2 This interrogatory reads: “State the names of all the detainees and inmates in the booking area on September 13,

2019 and your co-workers full names and address[es].” (See Doc. 14 at PAGEID 73).

incorporating arguments made in their opposition to plaintiff’s original motion for leave to

depose (Doc. 29) and motion to strike (Doc. 36). (Doc. 41). Defendants argue that they did not

receive the letter attached to plaintiff’s renewed motion,3 which they construed as a supplemental

interrogatory, until September 27, 2022 and promptly responded on October 3, 2022. (Id.).

Rule 16(b)(4) of the Federal Rules of Civil Procedure provides that “[a] schedule may be

modified only for good cause and with the judge’s consent.” A movant shows “good cause” by

showing that he could not reasonably meet the deadline despite his diligence. Fed. R. Civ. P.

16(b) advisory committee’s note to 1983 amendment. The Court must consider both the “good

cause” requirement and any potential prejudice to the nonmovant. Leary v. Daeschner, 349 F.3d

888, 909 (6th Cir. 2003) (“[I]n addition to Rule 16’s explicit ‘good cause’ requirement, we hold

that a determination of the potential prejudice to the nonmovant also is required when a district

court decides whether or not to amend a scheduling order.”).

In addition, the Court has already noted that under Rule 30(b)(3), a party noticing a

deposition “must state in the notice the method for recording the testimony. . . . The noticing

party bears the recording costs.” (Doc. 30 at PAGEID 159 (emphasis added), quoting Fed. R.

Civ. P. 30(b)(3)). A party’s request to take more than ten depositions under Rule 30(a)(2)(A)(i)

expressly incorporates Rule 26(b)(1), which limits discovery to that which is:

proportional to the needs of the case, considering the importance of the issues at

stake in the action, the amount in controversy, the parties’ relative access to

relevant information, the parties’ resources, the importance of the discovery in

resolving the issues, and whether the burden or expense of the proposed discovery

outweighs its likely benefit.

Id.

3 Defendants also argue that they only received the first page of this letter. (See Doc. 41 at PAGEID 464 n.1).

In view of the above, the Court GRANTS defendants’ motion to strike plaintiff’s reply

(Doc. 36). Plaintiff’s reply was filed after the Court issued its Order denying plaintiff’s related

motion (Doc. 30), and plaintiff has since filed a renewed motion for leave to depose (Doc. 37).

Plaintiff’s renewed motion for leave to depose (Doc. 37) is also denied. Defendants

initially responded to plaintiff’s interrogatory no. 11 on July 13, 2022. (See Doc. 29 at PAGEID

155). Based on the Court’s review of that interrogatory, defendants responded satisfactorily.

(Compare Doc. 14 at PAGEID 73 (“State the names of all the detainees and inmates in the

booking area on September 13, 2019 and your co-workers full names and address[es].”) with

Doc. 29 at PAGEID 155-56 (defendants’ response)). Plaintiff did not raise any issue regarding

defendants’ response until, at the earliest, over a month later and only two weeks prior to the

then-existing discovery deadline of August 30, 2022 (see Doc. 18). (See Doc. 37 at PAGEID

428-29).4 Moreover, plaintiff offers no good cause for not at least pursuing the depositions of

defendants within the applicable discovery deadline. At the time of plaintiff’s renewed motion

for leave to depose, defendants had already responded to plaintiff’s motion for summary

judgment (Doc. 23) and filed their own such motion (Doc. 33). The additional and extensive

discovery plaintiff now requests would likely necessitate another round of such filings. Plaintiff

again fails to explain how he will record—and fund the recording—of the desired testimony. See

Fed. R. Civ. P. 30(b)(3). Finally, given that there is a videorecording of the use of force at issue,

the Court finds that plaintiff’s request to depose dozens of potential witnesses fails to satisfy the

mandatory Rule 26(b) proportionality considerations, which plaintiff wholly fails to address.

Therefore, plaintiff’s renewed motion for leave to depose is DENIED.

4 Defendants represent that they did not receive this correspondence (dated August 16, 2022 by plaintiff) until over a

month later—on September 27, 2022. (Doc. 41 at PAGEID 464 n.1).

II. Motions to Amend (Docs. 42, 44, 47, and 59)

On October 11, 2022, eleven days after the dispositive motion deadline, plaintiff first

moved to amend his complaint to (1) add Deputy Joseph Crawford as a defendant who violated

his Fourth, Fifth, and Eighth Amendment rights; (2) add Fourth and Fifth Amendment violations

by defendant Miniard; and (3) add a claim that defendant Jones failed to supervise Deputy

Crawford. (See Doc. 42). On the same day, plaintiff moved to amend his motion for summary

judgment.5 (Doc. 44). In some respects, this filing reads like a response to defendants’ motion

for summary judgment—alleging, for example, that various documents submitted by defendants

to support their exhaustion affirmative defense are forgeries. (See Doc. 44 at PAGEID 480-81).

In other respects, this filing reads like an amended complaint—stating, for example:

Deputy Miniard, Deputy Crawford, Sheriff Jones, unknown on duty supervisors,

Melina Lay, Bill Roark, Mike Burkett, Teresa Rumpler, Jeff Smith, Vee Hurts,

Brandon Benjamin, Joel Thurkill, and Robert Hoffman[] [a]re not shielded by

1983 liability of the protections of qualified immunity, but more importantly each

defendant is being sued in their individual capacity.

(Doc. 44 at PAGEID 481-82). Plaintiff goes on to explain that these individuals violated his

Fourth and Fifth Amendment rights for “failure to intervene” and “deliberate indifference[,]” and

that their actions were outside the scopes of their employment. (Id. at PAGEID 482). Plaintiff

further states that defendant Jones failed to properly train his deputies. (See id. at PAGEID 484).

Approximately one week after these filings, plaintiff moved to amend his complaint

again—this time to add claims that officers Sabrina Johnson, Dan Allen, Aaron Smith, Jason

Schultz, Hannah McCarthy, Aaron Washburn, Garrett Rice, and Cody Brown failed to intervene

and protect him from violations of his Fourth, Eighth and Fourteenth Amendment rights. (See

Doc. 47).

5 This filing contains two certificates of service. (See Doc. 44 at PAGEID 498 and 510). The latter is dated October

11, 2022 and refers to the “Motion to Amend Motion for Summary Judgment.” (Id. at PAGEID 510).

In response to plaintiff’s motions to amend the complaint (Docs. 42 and 47), defendants

argue that plaintiff’s motions are “untimely, unduly prejudicial . . . , futile[,]” and

unaccompanied by proposed amended complaints. (Doc. 52 at PAGEID 608).6 Defendants

argue that each of the proposed defendants was known to plaintiff as of July 13, 2022 (see Doc.

29 at PAGEID 155-56), but plaintiff did nothing with this information for three months—during

which both parties filed dispositive motions, and the deadline for such motions passed. Finally,

defendants argue that the amendments are futile due to the applicable statute of limitations and

the doctrine of qualified immunity.

In response to plaintiff’s motion to amend his motion for summary judgment (Doc. 44),

defendants argue that the motion is not permitted by any authority and, in any event, was filed

outside the dispositive motion deadline without leave of Court. Defendants also argue that

motions for summary judgment are not an appropriate vehicle for the amendment of a complaint.

Defendants argue that the claims against new defendants are barred by the applicable two-year

statute of limitations and are “unduly delayed, futile, and prejudicial to Defendants.” (Doc. 51 at

PAGEID 603). Defendants also argue that, even to the extent that plaintiff’s motion to amend

his motion for summary judgment deals only with existing claims and defendants, it should be

denied because plaintiff’s motion does not satisfy the Rule 56(c) standard.

In a combined reply in support of all three motions, plaintiff states that he sought to

amend his complaint as soon as he reviewed the videorecording of the use of force at issue and

“the first and last names and addresses of inmates and the actual officer[s] that were assigned to

the booking area from first shift and second shift. . . .” (Doc. 58 at PAGEID 653). Plaintiff

argues that defendants previously and unlawfully withheld this information, supplying the good

6 Defendant also argues that these motions contain inappropriate requests for depositions and summary judgment.

Plaintiff already sought this relief in other pending motions. (See Docs. 21, 37).

cause necessary to support his proposed amendments, and that those amendments relate back to

the date of his initial complaint. Plaintiff also argues that defendants forged documents related to

the exhaustion of remedies, warranting relief in his favor. Finally, plaintiff argues that qualified

immunity does not shield the proposed additional defendants.

Under Rule 15(a), the Court “should freely give leave [to amend a pleading] when justice

so requires.” Fed. R. Civ. P. 15(a)(2). At the same time, “a party must act with due diligence if

it intends to take advantage of the Rule’s liberality.” Church Joint Venture, L.P. v. Blasingame,

947 F.3d 925, 934 (6th Cir. 2020) (quoting Pittman v. Experian Info. Sols., Inc., 901 F.3d 619,

641 (6th Cir. 2018)). “[W]here the underlying facts would support a claim leave to amend

should be granted, except in cases of undue delay, undue prejudice to the opposing party, bad

faith, dilatory motive, repeated failure to cure deficiencies by amendments previously allowed,

or futility.” Duggins v. Steak ’N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (citing Foman v.

Davis, 371 U.S. 178 (1962)). Allowing amendment after the close of discovery creates

significant prejudice. Id. (citing Moore v. City of Paducah, 790 F.2d 557, 560 (6th Cir. 1986)).

See also Wade v. Knoxville Utilities Bd., 259 F.3d 452, 459 (6th Cir. 2001) (“When amendment

is sought at a late stage in the litigation, there is an increased burden to show justification for

failing to move earlier.”).

Implicit in plaintiff’s requests to amend his complaint is a request to amend the Court’s

Calendar Order—as case deadlines had expired as of the filing of these motions. “Once the

scheduling order’s deadline passes, a plaintiff first must show good cause under Rule 16(b) for

failure earlier to seek leave to amend before a court will consider whether amendment is proper

under Rule 15(a).” Leary, 349 F.3d at 909 (emphasis added).

As to the substance of the proposed amendments, the Sixth Circuit “has repeatedly held

that ‘an amendment which adds a new party creates a new cause of action and there is no relation

back to the original filing for purposes of limitations.’” Zakora v. Chrisman, 44 F.4th 452, 480

(6th Cir. 2022) (quoting Asher v. Unarco Material Handling, Inc., 596 F.3d 313, 318 (6th Cir.

2010)). The Sixth Circuit has held that claims brought pursuant to § 1983 are governed by the

two-year statute of limitations found in Ohio Revised Code § 2305.10. Tolbert v. State of Ohio

Dep’t of Transp., 172 F.3d 934, 939 (6th Cir. 1999).

Based on the foregoing, the Court finds that plaintiff’s motions to amend his complaint

(Docs. 42, 44 (to the extent construed as such), and 47) should be denied. As a general matter,

plaintiff failed to attach proposed amended complaints specifying the desired amendments,

leaving the Court to decipher plaintiff’s full intent. See Kuyat v. BioMimetic Therapeutics, Inc.,

747 F.3d 435, 444 (6th Cir. 2014) (“Normally, a party seeking an amendment should attach a

copy of the amended complaint.”) (finding no abuse in discretion in denying leave to amend

where the plaintiffs “did not present an adequate motion and because they did not attach a copy

of their amended complaint”). Next, plaintiff offers no good cause at all for the delay in

asserting new claims against the existing defendants. As to the proposed new defendants,

plaintiff knew their identities as of July 13, 2022, yet waited approximately three months (and

after the dispositive motion deadline had expired) to request amendment of his complaint.

Delays in plaintiff’s receipt of the full names or addresses of potential witnesses or his

opportunity to view the Butler County Jail video do not demonstrate good cause for failing to

timely propose the amendments at issue. Absent good cause—a threshold matter to Rule 15

consideration—plaintiff’s motions to amend should be denied. See Leary, 349 F.3d at 909.

In addition, to the extent that plaintiff seeks to add deputies Joseph Crawford, Sabrina

Johnson, Dan Allen, Aaron Smith, Jason Schultz, Hannah McCarthy, Aaron Washburn, Garrett

Rice, and Cody Brown and supervising officers Melina Lay, Bill Roark, Mike Burkett, Teresa

Rumpler, Jeff Smith, Vee Hurts, Brandon Benjamin, Joel Thurkill, and Robert Hoffman as

defendants, the amendments are barred by the applicable statute of limitations and do not relate

back under Rule 15(c)(1)(B). See Tolbert, 172 F.3d at 937, 939; Zakora, 44 F.4th at 480. For

these reasons, plaintiff’s motions to amend (Docs. 42 and 47) should be denied.

Plaintiff’s motion to amend his motion for summary judgment (Doc. 44) is DENIED

because it was filed outside the dispositive motion deadline without leave of Court and is an

improper vehicle for securing amendments to a complaint. Davis v. Echo Valley Condo. Ass’n,

945 F.3d 483, 496 (6th Cir. 2019) (“Parties who seek to raise new claims at the summary-

judgment stage must first move to amend their pleadings under Federal Rule of Civil Procedure

15(a) before asserting the claims in summary-judgment briefing.”).

To the extent that plaintiff’s “Motion to grant Amendments Reply to Defendants

opposition” (Doc. 59) seeks a ruling on the foregoing motions, it is DENIED as MOOT.

III. Motions Relating to Cross-Motions for Summary Judgment (Docs. 39, 50, 53, 55, 60

and 61)

The parties’ cross motions for summary judgment are pending before the Court. (Docs.

21, 33). Plaintiff has moved the Court to allow additional time to obtain affidavits, declarations,

or other discovery he believes essential to his opposition under Fed. R. Civ. P. 56(d)(2). (Docs.

39, 55). Defendants have moved to strike document 40 (plaintiff’s “Memorandum of Law and

Brief in Support of Summary Judgment”) and document 43 (plaintiff’s “Statement of Proposed

Undisputed Facts”). (Doc. 50). Finally, plaintiff has filed several motions related to his

deposition—all concerning plaintiff’s desire to conform portions of his deposition testimony to

what the videorecording of the September 13, 2019 incident reflects. (Docs. 53, 60, and 61).

A. Rule 56(d) motions (Docs. 39, 55)

Rule 56(d)7 governs the procedures to be followed when a party alleges that additional

discovery is necessary to respond to a motion for summary judgment:

The affidavit or declaration required by the rule must “indicate to the district court

[the party’s] need for discovery, what material facts [the party] hopes to uncover,

and why [the party] has not previously discovered the information.” Cacevic v.

City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing Radich v. Goode,

866 F.2d 1391, 1393-94 (3d Cir. 1989)). A motion under Rule 56(d) may be

properly denied where the requesting party “‘makes only general and conclusory

statements [in the supporting affidavit or declaration] regarding the need for more

discovery and does not show how an extension of time would have allowed

information related to the truth or falsity of the [document] to be discovered,’”

Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004) (quoting Ironside

v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir. 1999)), or where the affidavit or

declaration “lacks ‘any details’ or ‘specificity.’” Id. (quoting Emmons v.

McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989)). The importance of complying

with Rule 56(d) cannot be over-emphasized. See Cacevic, 226 F.3d at 488.

Finally, whether or not to grant a request for additional discovery falls within the

trial court’s discretion. Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th

Cir. 2009).

Bloodworth v. Timmerman-Cooper, No. 2:10-cv-1121, 2013 WL 950931, at *1 (S.D. Ohio Mar.

12, 2013).

7 Rule 56(d) provides:

WHEN FACTS ARE UNAVAILABLE TO THE NONMOVANT. If a nonmovant shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the

court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d).

Plaintiff’s Rule 56(d) motions (Docs. 39, 55) are DENIED. Plaintiff’s declaration

submitted in support of his Rule 56(d) motions fails to specify the material facts plaintiff hopes

to discover, the need for such discovery, and the reasons why such information has not

previously been discovered. Paragraphs 1-8 of plaintiff’s declaration simply restates his factual

account of the September 13, 2019 incident. (See Doc. 55 at PAGEID 634-35). Paragraphs 9-12

restate plaintiff’s allegations, made elsewhere, that defendants’ response to plaintiff’s

interrogatory no. 11 was “vague and ambiguous” and evasive. (Id. at PAGEID 635). Paragraphs

14, 16-22, and 24 state that plaintiff needs testimony from the inmates and officers present

during the use of force at issue because they “would testify that Crawford and Miniard[’]s

actions towards plaintiff [were] improper” and otherwise generally corroborate his factual

account. (Id. at PAGEID 636-37).8 These conclusory statements do not persuade the Court

either that this discovery is needed or that an extension of time would be fruitful, given the

presence of a videorecording of the use of force at issue and the Court’s unaddressed concerns

raised in Part I regarding plaintiff’s ability to cover the cost of this unspecified amount of

discovery. Finally, in ¶ 15, plaintiff states that he needs to obtain a handwriting expert related to

his exhaustion efforts. (Id. at PAGEID 636). For the reasons explained in the forthcoming

Report and Recommendation regarding summary judgment, however, such discovery would not

change the Court’s ruling on exhaustion, and plaintiff offers no information regarding his ability

to compensate such an expert. Cf. Dykes v. Marshall, No. 1:14-cv-1167, 2016 WL 11644971, at

*1 (W.D. Mich. Nov. 1, 2016), aff’d, 2016 WL 11644972 (W.D. Mich. Dec. 13, 2016) (A pro se

8 Plaintiff also states that the witnesses would testify that deputy Crawford and defendant Miniard “disregarded [his]

request for the bigger bear claw” (id., PAGEID 637 at ¶ 24), but defendants do not dispute this fact. (See Doc. 33 at

PAGEID 285). Plaintiff also states that he “would need to obtain [an] affidavit from the Frosenic [sic] at Butler

County Jail from the September 18, 2019 interview.” (Doc. 55, PAGEID 637 at ¶ 23). Plaintiff makes no attempt to

explain the need for this discovery.

litigant proceeding in forma pauperis remains “responsible for paying his own litigation

expenses.”). For these reasons, plaintiff’s Rule 56(d) motions (Docs. 39, 55) are denied.

B. Motions to suppress or amend deposition statement (Doc. 53, 60, and 61)

Liberally construed, these three separate motions generally convey plaintiff’s request to

clarify that, contrary to his mistaken deposition testimony, his right ankle was shackled first by

deputy Crawford before defendant Miniard shackled his left ankle. Plaintiff argues that he only

had an opportunity to review the video of the September 13, 2019 incident and refresh his

recollection thereof after giving his deposition testimony. Defendants argue in response that this

relief is not contemplated by Rule 30(e), the Sixth Circuit prohibits the creation of a factual issue

through the filing of an affidavit or similar document that contradicts prior testimony, and

plaintiff’s deposition testimony should nevertheless be admissible as a party-opponent statement

under Rule 801(d)(2) of the Federal Rules of Evidence. (See Docs. 57, 63).

To the extent that plaintiff seeks relief pursuant to Rule 30(e), his motions are denied.

Rule 30(e) governs changes to deposition testimony by a witness and provides:

REVIEW BY THE WITNESS; CHANGES.

(1) Review; Statement of Changes. On request by the deponent or a party

before the deposition is completed, the deponent must be allowed 30 days after

being notified by the officer that the transcript or recording is available in which:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to sign a statement listing the

changes and the reasons for making them.

Fed. R. Civ. P. 30(e). The Sixth Circuit has interpreted Rule 30(e) restrictively to “permit only

the correction of typographic and transcription errors” but not substantive changes. Tchankpa v.

Ascena Retail Grp., Inc., No. 2:16-cv-895, 2018 WL 1472527, at *2 (S.D. Ohio Mar. 26, 2018)

(explaining that a majority of judges within the Sixth Circuit follow this interpretation consistent

with Trout v. FirstEnergy Corp., 339 F. App’x 560, 565 (6th Cir. 2009)); Hall v. U.S. Cargo &

Courier Serv., LLC, No. 2:16-cv-330, 2019 WL 2524424, at *2 (S.D. Ohio June 18, 2019)

(same). In view of the above, Rule 30(e) does not permit plaintiff to make substantive changes

to his deposition testimony.

To the extent, however, that plaintiff seeks to submit a post-deposition statement at the

summary judgment stage that is inconsistent with prior testimony, limited relief is appropriate.

One of plaintiff’s motions is made under penalty of perjury (Doc. 60 at PAGEID 674) and

includes a narrative description of the September 13, 2019 incident at issue following his

viewing of the videorecording (id. at PAGEID 668-69).9 When there is a direct contradiction

contained in a post-deposition affidavit, the Sixth Circuit has directed courts to consider whether

there is a “persuasive justification. . . .” Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908

(6th Cir. 2006). If there is not a direct contradiction, the court is to consider, inter alia, “whether

the affiant was cross-examined during his earlier testimony, whether the affiant had access to the

pertinent evidence at the time of his earlier testimony or whether the affidavit was based on

newly discovered evidence, and whether the earlier testimony reflects confusion [that] the

affidavit attempts to explain.” Id. at 909 (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th

Cir. 1986)).

Plaintiff has made inconsistent statements regarding when he actually viewed the

videorecording of the use of force. (See January 10, 2022 letter to the Clerk, Doc. 8 at PAGEID

43 (“Here’s the link to the video of the assault on September 13, 2019”); Doc. 60 (“Plaintiff

reviewed the video for the first time on October 28, 2022”); Doc. 61 at PAGEID 684 (“As of

September 28, 2022 plaintiff was able to view the video surveillance from the September 13,

9 In this motion, plaintiff also requests the substitution of particular language in his deposition pursuant to Rule

30(e). (Id. at PAGEID 670-72). This relief is denied for the reasons explained above.

2019 event”)). Nevertheless, it does not appear that plaintiff had the opportunity to refresh his

recollection of the use of force event by viewing the videorecording at or around the time of his

deposition. Plaintiff also states that the federal prison where he is located misplaced the copy of

the video that defendants produced to him. (Doc. 54 at PAGEID 624).

The Court concludes that consideration of the factors discussed in Aerel, S.R.L. do not

warrant the striking of plaintiff’s post-deposition declaration (Doc. 60 at PAGEID 668-69). The

use of force at issue occurred nearly three years prior to plaintiff’s deposition, and plaintiff

asserts that he was unable to access his copy of the videorecording at his prison—a persuasive

justification to the extent that his post-deposition declaration directly contradicts his deposition

testimony. To the extent that the contradiction is considered indirect, the Court finds that

plaintiff’s deposition testimony reflects confusion over which leg was restrained first and by

whom. Moreover, the Court finds that plaintiff’s overall description of the use of force in his

deposition is not “blatantly contradicted” by the videorecording. Cf. Scott v. Harris, 550 U.S.

372, 380 (2007). Plaintiff’s motions regarding his deposition testimony (Docs. 53, 60, and 61)

are therefore DENIED in PART and GRANTED in PART as explained herein.

C. Defendants’ motion to strike documents 40 and 43 (Doc. 50)

Plaintiff styled the filings at issue here his “Memorandum of Law and Brief in support of

summary judgment” (Doc. 40) and “Statement of Proposed Undisputed Facts” (Doc. 43).

Document number 40 is nearly identical to plaintiff’s motion for summary judgment (Doc. 21),

except that it adds several sentences, a notice to defendants, an updated certificate of service, and

a copy of his handwritten October 4, 2022 letter to defendants’ counsel.10 After review of the

10 The added sentences are the following:

• “Plaintiff was in restraint at the time Miniard yanked his right ankle causing him to fall on the floor.”

(Doc. 40 at PAGEID 451).

docket, this filing is best understood as a reply in support of plaintiff’s motion for summary

judgment—given its substance and the fact that no other document purporting to be a reply

appears on the docket. The filing’s certificate of service, however, indicates that it was filed 44

days after defendants’ response in opposition and without leave of Court. (See Doc. 40 at

PAGEID 460). See also S.D. Ohio Civ. R. 7.2(a)(2) (“Any reply memorandum shall be filed

within fourteen days after the date of service of the memorandum in opposition.”). Similarly,

plaintiff’s “Statement of Proposed Undisputed Facts” was filed approximately 78 days from the

certificate of service included with his motion for summary judgment and without leave of

Court.11 See District Judge Dlott’s Standing Order on Civil Procedures, I.E.2.a. (“Counsel must

attach to the initial brief in support of a motion for summary judgment a document entitled

‘Proposed Undisputed Facts’. . . .”) (emphasis added). More importantly, however, plaintiff’s

“Statement of Proposed Undisputed Facts” is a recitation—unsworn and not made under penalty

of perjury—of plaintiff’s factual account of the September 13, 2019 incident. See id. (“Each

Proposed Undisputed Fact must be supported by a specific citation or citations” to evidence that

would be admissible at trial.) (emphasis added). Defendants’ motion (Doc. 50) is accordingly

GRANTED, and both filings (Docs. 40 and 43) are STRICKEN, as they do not comply with the

local rules and Standing Order of this Court. See Jones v. Ahmed, No. 1:14-cv-964, 2019 WL

1433853, at *1 (S.D. Ohio Mar. 31, 2019) (finding that the undersigned did not err in granting a

motion to strike a filing that did not comply with S.D. Ohio Civ. R. 7.2(a)(2)), aff’d, No. 19-

• “Plaintiff was a pretrial detainee at the time of the assault.” (Id.).

• “Crawford, Sheriff Richard K. Jones stood by and failed to intervene. Miniard[’]s actions and

Supervisory.” (Id. at PAGEID 452).

• “[Plaintiff] now suffers PTSD and emotional distress from the excessive force[, which] cause[d]

continu[ing] pain in right ankle.” (Id. at PAGEID 455).

• “Plaintiff asking for bear claws did not cause or justify Miniard yanking and appl[y]ing the shackles on too

tight on his right ankle.” (Id. at PAGEID 456).

11 This filing does not contain a certificate of service but is post-marked October 11, 2022. (See Doc. 43 at PAGEID

479).

3393, 2020 WL 2062280 (6th Cir. Feb. 10, 2020); Scully v. Hamilton Cnty. Developmental

Disabilities Servs., No. 1:17-cv-685, 2021 WL 3634700, at *4 (S.D. Ohio Aug. 17, 2021)

(granting a motion to strike a summary judgment filing that did not comply with the Court’s

standing order).

IT IS THEREFORE ORDERED THAT:

1. Defendants’ motion to strike (Doc. 36) is GRANTED;

2. Plaintiff's renewed motion for leave to depose defendants (Doc. 37) is DENIED;

3. Plaintiff's motion to amend motion for summary judgment (Doc. 44) is DENIED;

4. Plaintiff's motions for additional discovery under Rule 56(d) (Docs. 39, 55) are DENIED;

5. Defendants’ motion to strike (Doc. 50) is GRANTED;

6. Plaintiff's motions regarding his deposition (Docs. 53, 60, and 61) are DENIED in PART

and GRANTED in PART as explained herein; and

7. Plaintiff's motion to grant amendments (Doc. 59) is DENIED as MOOT.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiffs motions to amend complaint (Docs. 42 and 47) be DENIED.

Date: 1/10/2023 Harun 5 Rethowh

Karen L. LitkoVitz

United States Magistrate Judge

16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

QIAN WILLIAMS, Case No. 1:22-cv-1

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

CHRIS MINIARD, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).