United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION & ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE
is the plaintiff's motion for leave to file a third
amended complaint, filed January 11, 2019.
February 28, 2016, defendant William A. Blatt, a deputy in
the Wood County Sheriff's Department, initiated a traffic
stop of plaintiff Brandon Matthew Coss's fiancé,
Rebecca Dotson. Second Am. Compl. (“Compl.”), ECF
No. 15, at ¶ 8. The plaintiff, who witnessed the
incident, and Deputy Blatt had a confrontation over the
propriety of the traffic stop. Id. at ¶¶
alleges that on February 29, 2016, Deputy Blatt “swore
to false statements in a criminal complaint in order to
obtain a warrant for Plaintiff's arrest.”
Id. at ¶ 19. “At approximately 11:00 PM
on February 29, 2016, Deputies Blatt and Cross arrived at the
Plaintiff's residence to execute the invalid arrest
warrant” for either disorderly conduct or obstructing
an officer. Id. at ¶ 20-21. Upon entering the
residence, and despite the fact that plaintiff was already on
the ground with his hands behind his back, Deputy Blatt
allegedly struck plaintiff in the head with his knee multiple
times. Id. at ¶ 29-30. Plaintiff also claims
that Deputy Blatt unjustifiably continued to physically harm
him after he was in custody, which Deputy Cross witnessed.
Id. at ¶ 31-34.
being held in jail overnight, plaintiff went before the Wood
County Magistrate. Id. at 35-36. Deputy Blatt had
filed a second criminal complaint in which he alleged two
counts of obstructing an officer and is purported to have
made multiple false statements to the Magistrate in order to
support these allegations. Id. at 36. The Magistrate
found probable cause for one count of obstructing an officer.
Id. That charge, the only one for which probable
cause was found, was dismissed on December 13, 2016.
Id. at 38.
acting pro se, initiated this action in the Circuit Court of
Wood County, West Virginia on February 28, 2018. See ECF No.
1-5, at 1. Plaintiff, pro se, later amended his complaint, on
June 27, 2018. ECF No. 1-1. Service of process does not
appear to have been made on the defendants until after the
plaintiff filed his amended complaint. Not. Removal, ECF No.
1, at ¶¶ 3-4; ECF No. 1-5. Although the original
complaint was not transmitted to this court with the notice
of removal, Exhibit 5, attached to defendants' notice of
removal, appears to be the state court docket sheet which
indicates that the original complaint was filed on February
28, 2018. The defendants removed this matter to this court
pursuant to 28 U.S.C. § 1331 and subsequently moved to
dismiss the amended complaint.
later retained counsel and moved to amend his amended
complaint to cure several deficiencies in the first amended
complaint and to replace, as a defendant, the Wood County
Sheriff's Department with the Wood County Commission.
Mot. Am. Compl., ECF No. 12. On November 29, 2018, the court
granted plaintiff leave to file a second amended complaint
and allowed defendants to either withdraw or amend their
motion to dismiss in view of the amendment. ECF No. 14.
second amended complaint includes: 42 U.S.C. § 1983
claims against Deputy Blatt under the Fourth Amendment for
false arrest and excessive force; a claim against Deputy
Blatt under the First Amendment for retaliatory arrest; a
claim against Deputy Cross under the Fourteenth Amendment for
failure to intervene; a claim for municipal liability against
the Wood County Commission; a state-law false arrest and
imprisonment claim against Deputy Blatt; assault and battery
claims against Deputy Blatt; intentional infliction of
emotional distress claims against Deputies Blatt and Cross;
and a malicious prosecution claim against Deputy Blatt.
Compl., at ¶¶ 39-72.
December 20, 2018, defendants filed their amended motion to
dismiss plaintiff's claims. ECF No. 20. Instead of
responding to defendants' motion, the plaintiff filed, on
January 11, 2019, this motion for leave to amend the second
amended complaint. Pl.'s Mot., ECF No. 22.
third amended complaint “would include facts omitted
from the original document and would present a more complete
and accurate description of the events giving rise to this
action.” Id. at ¶ 3. Plaintiff
specifically seeks to add “descriptions of the false
statements made by Defendant Blatt in the process of
obtaining criminal complaints against the Plaintiff.”
Id. The plaintiff asserts that the amendment would
not prejudice the parties inasmuch as the court's
November 29, 2018 scheduling order set a January 11, 2019
date by which the parties might amend their pleadings, a date
with which plaintiff has complied. Id. at ¶ 4.
The third amended complaint does not seek to add any parties
or causes of action.
third amended complaint only contains two additions of note.
First, the plaintiff seeks to add the allegation that in an
effort to obtain an arrest warrant for plaintiff, Deputy
Blatt falsely told the Magistrate “that Plaintiff took
an aggressive stance against Deputy Blatt, that Deputy Blatt
attempted to arrest the Plaintiff during the incident, and
that the Plaintiff confronted Deputy Blatt with an aggressive
dog.” Proposed Compl., ECF No. 22-1, at ¶ 19.
Second, the plaintiff alleges that in attempting to get the
Magistrate to file a second criminal complaint after
plaintiff's arrest, Deputy Blatt falsely said that
“Plaintiff told officers they would have to kick in the
door. Additionally, every statement attributed to Ms. Dotson
is a fabrication.” Id. at ¶36. None of
the other amendments make any meaningful changes to the
substance of the second amended complaint.
have filed, on January 16, 2019, a response in opposition to
plaintiff's motion, and the time in which ...