Merrill v. Seagraves et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
RYAN TYLER MERRILL, 	)
)
Plaintiff, 	)
)
v. 	)
) 	Case No. CIV-22-007-RAW-GLJ
JONATHAN SEAGRAVES, 	)
CITY OF BROKEN 	)
ARROW, and BRANDON 	)
BERRYHILL, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Ryan Merrill (“Plaintiff’) filed this civil rights action against Defendants Jonathan
Seagraves and Greg Fell, Officers with the Broken Arrow Police Department, as well as
Broken Arrow Police Chief Brandon Berryhill and the City of Broken Arrow, alleging he
was subject to excessive force under the Fourth and Fourteenth Amendments, pursuant to
42 U.S.C. § 1983, as well as alleging claims of failure to train and failure to supervise.
This matter now comes before the Court on Plaintiff’s Motion to Permit Second Amended
Complaint [Docket No. 69]. 	On October 14, 2022, the Court referred this case to the
undersigned Magistrate Judge for all further proceedings in accordance with jurisdiction
pursuant to 28 U.S.C. § 636. 	See Docket No. 45. 	For the reasons set forth below, the
undersigned Magistrate Judge now finds that Plaintiff’s Motion to Permit Second
Amended Complaint should be DENIED.
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Background
Plaintiff alleges in his Amended Complaint that he was driving on December 3,
2020, in Broken Arrow, Oklahoma when he was pulled over by Seagraves. 	See Docket
No. 24, ¶¶ 10-11. Seagraves was not wearing a mask when he approached the vehicle, so
Plaintiff only partially rolled down his window to pass his license and insurance
verification out of concern regarding the high level of COVID-19 at the time. 	Id.
Seagraves went back to his car, prepared a citation, and returned to the vehicle where
Plaintiff again only partially rolled down his window to receive a citation for an expired
tag. Id., ¶ 12. Seagraves demanded he fully roll down the window, but Plaintiff declined
to roll it further than he deemed necessary to receive and sign the citation. Id. Seagraves
then returned to his vehicle without giving further instructions. Id.
Plaintiff alleges that after Seagraves returned to his patrol vehicle, he waited
“several more minutes” then drove within the speed limit toward his stepbrother’s house
while being followed by Seagraves. Id., ¶ 13. During the drive, Seagraves was also joined
by other officers, including Fell. 	Id. 	Upon arriving at his stepbrother’s house, Plaintiff
states that he “ran up on a porch where he had been working,” turned to face the
approaching officers, and held his hands in the air with his phone in his right hand. 	He
asserts that he had no weapon and did not act in an aggressive manner. 	Id., ¶ 14. 	Both
Seagraves and Fell approached Plaintiff with their firearms pointed at him while he
pleaded with the officers not to kill him. Id., ¶ 15. Without warning, Seagraves drew his
Taser and shot Plaintiff in the chest, incapacitating him and causing him to fall face down.
Id., p. 5, ¶¶ 17-18. Without warning, Seagraves then discharged the Taser a second time,
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hitting Plaintiff in the back. Id., ¶¶ 18-19. Plaintiff alleges that Fell failed to intervene to
prevent the second taser hit to his back. Id., ¶ 18.
Fell sought dismissal of the Amended Complaint, arguing, inter alia, qualified
immunity and that Plaintiff failed to set forth a claim for Fell’s failure to intervene to
prevent Seagraves’ second taser shot because, based on the Amended Complaint’s
allegations, Fell did not have an adequate opportunity to intervene. 	See Docket No. 29,
pp. 4-6. After the Court denied Fell’s motion to dismiss, see Docket No. 50, he appealed.
Ultimately, the Tenth Circuit concluded that:
Assuming for the sake of argument that Officer Seagraves used excessive
force when he fired the second taser shot, the amended complaint fails to
plausibly plead a claim against Officer Fell for failure to intervene because
it indicates the second shot came without any warning. In other words, the
factual assertions in the amended complaint do not plausibly suggest that
Officer Fell had a realistic opportunity to intervene.
See Docket No. 62, p. 6. 	As a result, the Tenth Circuit reversed the District Court and
“remanded with instructions to grant Officer Fell’s motion to dismiss on the grounds of
qualified immunity.” Id., p. 8. Subsequently, the District Court dismissed Fell as a party-
defendant. See Docket No. 64.
Rather than seek a rehearing en banc with the Tenth Circuit, Plaintiff now seeks to
further amend his Amended Complaint to add Fell back in as a party-defendant and to
assert both additional facts to add context and an alternative allegation that Seagraves did
state a warning before the second taser shot. See Proposed Second Amended Complaint at
Docket No. 69, Ex. 2. Specifically, as it relates to additional facts for “context”, Plaintiff
now seeks to allege that Seagraves “continued to scream” at Plaintiff while he was on the
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ground without a weapon and making no effort to escape or resist, and that Seagraves was
“emotionally out of control” to such an extent that a reasonable officer in Fell’s position
should have intervened to prevent an escalation of force. Id., ¶ 17. Plaintiff also seeks to
allege that “[a]lternatively, Defendant Fell asserts that Fell perceived a verbal warning that
he claims was made by Defendant Seagraves and that Seagraves warned that he was going
to shoot Plaintiff a second time with his taser while Plaintiff was face down without active
resistance and not posing a threat to anyone.” Id. (emphasis added). Plaintiff further seeks
to allege that Seagraves’ second taser shot came “almost immediately” after Seagraves
warning without any reasonable opportunity for Plaintiff to comply. Id.
Analysis
Defendants Seagraves and the City of Broken Arrow (“Defendants”) oppose
Plaintiff’s motion to amend because Fell was previously dismissed with prejudice, such
dismissal has not been vacated, and Plaintiff’s attempt to plead facts contradictory to the
Amended Complaint constitutes bad faith and a sham pleading. Plaintiff’s motion did not
address the issue of the Court’s authority to add Fell back as a defendant after his
dismissal.
Applicable Standard
Federal Rule of Civil Procedure 15(a)(2) provides that “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). 	“Refusing
leave to amend is generally only justified upon a showing of undue delay, undue prejudice
to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by
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amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3
F.3d 1357, 1365 (10th Cir. 1993) (citing Castleglen, Inc. v. Resolution Trust Corp., 984
F.2d 1571, 1585 (10th Cir. 1993)).
As set forth below, Plaintiff’s proposed Second Amended Complaint would be futile
and, therefore, the undersigned Magistrate Judge recommends that Plaintiff’s motion be
denied.
I. 	Fell’s Dismissal was With Prejudice
Defendants assert that Fell was dismissed with prejudice based on the Tenth
Circuit’s order and judgment and that, as a result, Plaintiff cannot refile the same claim
against him. Both the Tenth Circuit’s opinion and judgment, which states the “judgment
of the district court is reversed and the case is remanded with instructions to grant Officer
Fell’s motion to dismiss on the grounds of qualified immunity”, Docket No. 62, and the
District Court’s order, which dismissed Fell as a party-defendant, Docket No. 64, are silent
as to whether the dismissal was specifically with or without prejudice.
Fell’s dismissal was based on granting his motion to dismiss under Fed. R. Civ. P.
12(b)(6). 	It is well-settled that a dismissal for failure to state a claim under Rule
12(b)(6)—which speaks to the legal insufficiency of the claim at issue—is an adjudication
on the merits. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981)
(“The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)
is a judgment on the merits.” (internal quotation marks omitted)); McLean v. United
States, 566 F.3d 391, 396 (4th Cir.2009) (“Courts have held that, unless otherwise
specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be ...
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a judgment on the merits....”); Fed. R. Civ. P. 41(b) (Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule –
except one for lack of jurisdiction, improper venue, or failure to join a party under Rule
19 – operates as an adjudication on the merits”). 	Furthermore, the Supreme Court has
held that “an ‘adjudication upon the merits’ is the opposite of a ‘dismissal without
prejudice.’” 	Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001); see
Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 131 (D.C. Cir. 2012) (“Adjudication on
the merits in this context [i.e., involuntary dismissal] means dismissal with prejudice.”);
9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2373, 739–42
(3d ed. 2008) (“[B]ecause an involuntary dismissal is an adjudication on the merits, it is,
in the phrase commonly used by the federal courts, ‘with prejudice.’”).
As Defendants note, a dismissal with prejudice bars the refiling of the same claim
in the same court by the same plaintiff. 	Griffin v. Gash, 317 F. Appx. 782, 7783 (10th
Cir. 2009) (citing Semtek Int'l., 531 U.S. at 505-06), cert. denied, 556 U.S. 1280 (2009).
See also Richardson v. Fowler Envelope Co., LLC, 2003 WL 22890253, at *1 (D. Kan.
Dec. 8, 2003) (“plaintiff is further advised that ‘dismissal with prejudice’ means that this
case will end ... and plaintiff will not be allowed to refile his claim in this court.”). Thus,
Fell’s dismissal from this case was with prejudice and Plaintiff cannot simply add him
back as a party-defendant in this case by refiling the same claim against him.
II. 	Plaintiff Did Not Seek Any Post-Judgment Relief Against Fell
Defendants also assert that Plaintiff cannot add Fell back into this case as a party-
defendant unless and until the judgment against Fell is set aside or vacated. As noted, the
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Tenth Circuit “has repeatedly and unequivocally held that, ‘[o]nce judgment is entered,
the filing of an amended complaint is not permissible until judgment is set aside or vacated
pursuant to Fed.R.Civ.P. 59(e) or 60(b).’” 	The Tool Box, Inc. v. Ogden City Corp., 419
F.3d 1084, 1087 (10th Cir. 2005) (quoting Seymour v. Thornton, 79 F.3d 980, 987 (10th
Cir. 1996)). 	“Indeed, the rule is the same in our sister circuits.” 	Id. (gathering cases).
“Moreover, even though Rule 15(a) states that ‘leave [to amend] shall be freely given
when justice so requires,’ ‘this presumption is reversed in cases, such as here, where a
plaintiff seeks to amend a complaint after judgment has been entered and a case has been
dismissed.’” Id. at 1087-88 (quoting Bressner v. Ambroziak, 379 F.3d 478, 484 (7th Cir.
2004); see also Ahmed v. Dragovich, 297 F.3d 201, 207-08 (3d Cir. 2002) (liberality of
Rule 15 no longer applicable once judgment has been entered)).
Plaintiff has not sought to set aside or vacate the judgment against Fell under either
Fed. R. Civ. P. 59(e) or 60(b). Having failed to do so, Plaintiff may not now seek to simply
add Fell back into this case as a party-defendant.
III. 	Plaintiff’s Proposed New Facts Do Not Support a Plausible Failure to
Intervene Claim Against Fell
Defendants assert that Plaintiff’s motion should be denied because it comes after
judgment against Fell was entered and because Plaintiff’s new factual allegations are in
bad faith and a sham because they contradict allegations in the Amended Complaint. As
set forth below, even if the judgment in favor of Fell was not with prejudice and the
amendment was prohibited because the judgment has not been set aside of vacated, the
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undersigned Magistrate Judge concludes that the new allegations in the proposed Second
Amended Complaint do not support a plausible claim against Fell for failure to intervene.
To state a claim against Fell for a constitutional violation in the form of a failure to
intervene, Plaintiff must allege that “1) a government officer violated his constitutional
rights, 2) a different government actor (the defendant) observed or had reasons to know
about that constitutional violation, and 3) the defendant had a realistic opportunity to
intervene, but failed to do so.” Bledsoe v. Carreno, 2022 WL 16942631, at *20 (10th Cir.
Nov. 15, 2022) (citing Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015); Est. of Booker
v. Gomez, 745 F.3d 405, 422-23 (10th Cir. 2014)). See also Vondrak v. City of Las Cruces,
535 F.3d 1198, 1210 (10th Cir. 2008) (“An officer who fails to intercede is liable for the
preventable harm caused by the actions of the other officers where that officer observes or
has reason to know: (1) that excessive force is being used, (2) that a citizen has been
unjustifiably arrested, or (3) that any constitutional violation has been committed by a law
enforcement official.”) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
Thus, “[i]n order to be liable for failure to intervene, the officers must have ‘observe[d] or
ha[d] reason to know’ of a constitutional violation and have had a ‘realistic opportunity to
intervene.’” Jones, 809 F.3d at 576 (quoting Vondrak, 535 F.3d at 1210).
Plaintiff seeks to allege two new categories of factual allegations. The first is that
Seagraves was screaming at Plaintiff as he continued to point the taser at him after the first
taser shot and that Seagraves was “emotionally out of control” at that time. Plaintiff offers
no explanation for why he did not allege these facts in his Amended Complaint, even
though it is apparent these facts are based on Plaintiff’s own perceptions and observations
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during the incident. Untimeliness alone may be a sufficient basis for denying a party leave
to amend. 	See Duncan v. Manager, Dep’t of Safety, 397 F.3d 1300, 1315 (10th Cir. 2005);
Hayes v. Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001). The important inquiry is not
simply whether Plaintiff has delayed, but whether such delay is undue. 	Minter v. Prime
Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006). Delay is undue “when the party filing
the motion has no adequate explanation for the delay,” Frank v. U.S. West, Inc., 3 F.3d
1357, 1365–66 (10th Cir. 1993), or when “the party seeking amendment knows or should
have known of the facts upon which the proposed amendment is based but fails to include
them in the original complaint.” Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893
F.2d 1182, 1185 (10th Cir. 1990) (quoting State Distribs., Inc. v. Glenmore Distilleries
Co., 738 F.2d 405, 416 (10th Cir. 1984)). Plaintiff’s failure to previously plead these facts
that were known to him at the time or to otherwise explain why he should be excused is
fatal to his attempt to subsequently amend his complaint for a second time. 	This is
particularly true here, where Plaintiff had the benefit of filing his Amended Complaint after
Fell moved to dismiss under Fed. R. Civ. P. 12(b)(6) due to the lack of adequate time to
intervene. See Docket No. 10, pp. 4-6. Moreover, as set forth below, even if Plaintiff were
allowed to file the proposed Second Amended Complaint, he still fails to state a plausible
claim for the failure of Fell to intervene.
Second, Plaintiff seeks to add facts, in the alternative, that “Fell perceived a verbal
warning that he claims was made by Seagraves and that Seagraves warned that he was
going to shoot Plaintiff a second time with his taser.” 	See Docket No. 69, Ex. 2 at ¶ 17.
Defendants assert this proposed allegation is directly contradictory to Plaintiff’s prior
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allegation in the Amended Complaint that “[n]either Seagraves nor Fell warned Merrill
that he was going to be shot with a taser a second time.” 	See Docket No. 25, ¶ 19. 	As
such, Defendants argue the proposed Second Amended Complaint is made in bad faith and
must not be permitted. See, e.g., Marchelletta v. Bergstrom, 752 Fed. Appx. 724, 729, 733-
34 (11th Cir. 2018) (“It is one thing to present inconsistent theories of relief in one pleading.
It is another thing entirely to test a legal theory on one set of alleged facts, lose and suffer
an adverse judgment and then use the first decision as a roadmap to alter the alleged facts,
and then re-plead post-judgment”); United States v. Sims, 525 F. Supp. 2d 1255, 1261 (D.
N.M. 2003) (an amended complaint is not “a second chance for the losing party to make
its strongest case or to dress up arguments that previously failed”).
Contrary to Defendants argument, however, a careful reading of the proposed
Second Amended Complaint indicates Plaintiff’s proposed allegation is not directly
contradictory but is instead attempting to thread a very small needle. 	Whereas the
Amended Complaint alleges Plaintiff did not hear Seagraves give a warning before the
second taser shot, the proposed Second Amended Complaint seeks to allege that Fell
perceived and heard a warning by Seagraves before the second taser shot. Plaintiff offers
no explanation for the basis for this proposed allegation or how he knows what Fell either
perceived or heard. 	Nonetheless, even assuming this allegation as true, it still fails to
plausibly state a claim for failure to intervene because the proposed Second Amended
Complaint plainly alleges that Fell did not have a realistic opportunity to intervene.
Plaintiff affirmative alleges that the second taser shot was “almost immediately after”
Seagraves’ warning such that Plaintiff did not have the opportunity to comply with any
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command. See Docket No. 69, Ex. 2 at ¶ 17. If the gap in time between Seagraves’ alleged
warning and second taser shot was so short that Plaintiff had no time to comply, it is not
plausible that Fell would have had adequate time to hear Seagraves’ warning, process the
warning and react to it in some way to stop the second taser shot from occurring. A warning
with no adequate time to react is no better than no warning at all for purposes of a failure
to intervene claim. Therefore, Plaintiff’s proposed Second Amended Complaint does not
plausibly allege that Fell had a realistic opportunity to intervene. 	Thus, the proposed
Second Amended Complaint is futile.
CONCLUSION
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Plaintiff’s Motion to Permit Second Amended Complaint [Docket No. 69] be DENIED.
Any objections to this Report and Recommendation must be filed within fourteen days.
See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Any objection and response shall each
be limited to 10 pages and a reply is permitted only with leave of court upon a showing of
good cause.
IT IS SO ORDERED this 8 th day of April, 2024.
____________________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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