Brumbach v. Smith

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MASON H. BRUMBACH, ) CASE NO. 4:24-CV-285

ADMINISTRATOR OF THE )

ESTATE OF FRED HENRY WILD, ) JUDGE BENITA Y. PEARSON

DEC., )

)

Plaintiff, )

)

v. )

) MEMORANDUM OF OPINION

OFFICER SHANE SMITH et al., ) AND ORDER

) [Resolving ECF No. 14]

Defendants. )

Pending before the Court is Plaintiff Mason H. Brumbach, Administrator of the Estate of

Fred Henry Wild, Decedent’s Motion for Leave to Amend Amended Complaint; and to File

Second Amended Complaint, Instanter (ECF No. 14). Defendant Sergeant Bonar opposed the

Motion for Leave to Amend. (ECF No. 18). Plaintiff replied. (ECF No. 21). For the reasons set

forth below, the Court denies Plaintiff’s Motion for Leave to Amend Amended Complaint and to

File Second Amended Complaint, Instanter.

Prior to the filing of the instant motion, Plaintiff was served with the Court’s ruling

dismissing Defendant Sergeant Jason Bonar from this case. See ECF No. 13.

Plaintiff moves pursuant to Fed. R. Civ. P. 15(a)(2) for leave to amend his Amended

Complaint, and to file his accompanying Second Amended Complaint. ECF No. 14. Plaintiff

asserts that his request “is made in good faith, without undue delay or prejudice to the

Defendants; and for the purpose of stating an actionable claim against Defendants, Sergeant

Jason Bonar, et al, in consequence of the Court’s 9/27/24 Order to the contrary[.]” ECF No. 14

at PageID #: 125.

“[A] party may amend its pleading only with the opposing party's written consent or the

court's leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P.

15(a)(2). “Because Rule 15(a)(2) directs courts to ‘freely give leave when justice so requires,’

the rule embodies a ‘liberal amendment policy.’” Brown v. Chapman, 814 F.3d 436, 442–43

(6th Cir. 2016) (quoting Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)). “Despite this

policy, denial may be appropriate when there is ‘undue delay, bad faith or dilatory motive 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.’” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Sixth Circuit

has held it is not appropriate to dismiss even improperly pled claims with prejudice without

affording the party an opportunity to correct a pleading deficiency. U.S. ex rel. Bledsoe v. Cmty.

Health Sys., Inc., 342 F.3d 634, 644 (6th Cir. 2003).

The Court does not reach a conclusion regarding questions of bad faith or undue

prejudice because Plaintiff’s motion for leave to amend will be denied on the merits. The Court

recognizes the liberal standard for granting leave to amend, but the Court denies the motion

because the allegations in the Second Amended complaint cannot withstand a 12(b)(6) motion to

dismiss. See Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 520 (6th Cir.

2010) (“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6)

motion to dismiss.”) (citing Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir.

2000)).

As the only change, the proposed Second Amended Complaint states in paragraph four:

. . . with each and every Defendant, including Defendant Sergeant

Bonar and either by a combination of their actions or by their

concurrent conduct, firing his weapon into Plaintiff’s Decedent,

thereby producing a single indivisible injury, death, under

circumstances making it impossible to measure or ascertain the

amount of injury inflicted by any one or more of the Defendants.

ECF No. 14 at PageID #: 127-28.

“Courts within the Sixth Circuit do not permit ‘group pleadings’ outside of certain fraud

claims. Rather, a complaint must assert that a defendant was personally involved in the alleged

deprivation of a plaintiff’s federal rights.” McGath v. Steward Trumbull Mem'l Hosp., Inc., No.

4:22-CV-2130, 2023 WL 5352187, at *3 (N.D. Ohio Aug. 21, 2023) (citing Frazier v. Michigan,

41 F. App'x 762, 764 (6th Cir. 2002)). In Mhoon v. Metro. Gov't of Nashville & Davidson, Co.,

Tenn., No. 3:16-cv-1751, 2016 WL 6250379, at *3 (M.D. Tenn. Oct. 26, 2016), the court dismissed

the individual capacity § 1983 claims, because Plaintiff’s use of the disjunctive “and/or” indicated

that each individual defendant may or may not have been involved in the use of excessive force.

In other words, Plaintiff failed to allege specific facts to show each Defendant’s involvement in

the constitutional violation.

Plaintiff reproduces that same error, and it was also the very same reason that the Court

granted Defendant Sergeant Jason Bonar’s Motion to Dismiss: Plaintiff fails to plead with

particularity each Defendant’s actions, because he attempts to hold each Defendant liable for the

same conduct. See ECF No. 13 at PageID #: 122-23. The Complaint does not connect the personal

involvement of any defendant to the alleged use of excessive force. See Rodriguez v. Providence

Cmty. Corrs., Inc., 191 F. Supp. 3d 758, 773 (M.D. Tenn. 2016) (“A complaint that ‘fails to impute

concrete acts to specific litigants’, fails to state a plausible claim.”) (citations omitted). By his own

admission, Plaintiff concedes that it is “impossible to measure or ascertain the amount of injury

inflicted by any one or more of the Defendants.” ECF No. 14 at PageID #: 128. The amendment,

in sum, does not show that Sergeant Bonar, “through [his] own individual actions, has violated the

constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

Because Plaintiff’s proposed Second Amended Complaint consists of group pleadings and

conclusory allegations which are insufficient to plead an actionable § 1983 claim, the Court denies

Plaintiff’s motion for leave to file a Second Amended Complaint.

IT IS SO ORDERED.

November 8, 2024 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge