Free Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1:04-cv-01391-JJF _ Document 87 Filed 12/07/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TIMOTHY WARD, )
Plaintiff, ) ·
)
v. ) C.A. No. 04-1391 ***
· )
STANLEY TAYLOR; PAUL HOWARD; )
THOMAS CARROLL; JOHN SALAS; ) JURY TRIAL DEMANDED
JESSICA DAVIS-BARTON; CERTAIN )
UNKNOWN INDIVIDUAL EMPLOYEES OF )
THE STATE OF DELAWARE DEPARTMENT )
OF CORRECTION; and STATE OF DELAWARE )
DEPARTMENT OF CORRECTION, )
) .
Defendants. ) r _
MOTION FOR LEAVE TO AMEND THE COMPLAINT TO ADD LIEUTENANT
PAUL HARVEY AS A PARTY DEFENDAN T
Pursuant to Federal Rule of Civil Procedure I5, Plaintiff Timothy Ward, through _
his attorneys, hereby moves this Honorable Court for leave to Amend the Complaint to
add Paul Harvey as a party defendant for the following reasons:
1. This action was initiated by Plaintiff Timothy Ward in October 2004 and l
was assigned to Judge Kent Jordan.
2. Plaintiff was beaten by an inmate who was suffering from mental l l
disorders and was permitted to go to the outside recreational area where he struck
Mr. Ward without warning. `
_ _ 3. Plaintiff initially named as Defendants: Stanley Taylor; Paul Howard;
‘ Thomas Carroll; John Salas; Jessica Davis-Barton; and “certain unknown
individual employees of the State of Delaware Department of CO1'1"€CIlOI'l.” In

L Case 1 :04-cv-01391-JJF Document 87 Filed 12/07/2007 Page 2 of 4
addition, the State of Delaware Department of Correction was named as a
Defendant-. _
4. The parties exchanged written discovery as well as deposition testimony.
p · 5. While Lieutenant Paul Harvey was identified by Defendants as a
Department of Correction employee with knowledge of the events, the extent of
Lieutenant Harvey’s involvement with the facts and circumstances that led to
Plaintiff s beating was unknown until the conclusion of discovery when the
deposition of Department of Correction Officer Sean Lovett was taken on October
24,2007. ‘
6. Officer Lovett testified and gave information for the first time to show that
the assault on Tim Ward "could have been prevented." (Lovett deposition, 66 . l
attached hereto as Exhibit A). Lovett described how after seeing inmate Johnson
act out at chow hall (inmate Johnson was the inmate who attacked Tim Ward),
Lovett went directly to Lieutenant Paul Harvey to describe to Harvey Lovett’s
. concerns about Johnson’s condition saying, "He’s going to bust loose. Something
is going to go down." (Lovett deposition, 66). Lovett further told Lieutenant
Harvey that, "this dude is going to go crazy. I don’t want to be around when it
happens." Lovett cautioned Harvey, "you better do sornething." (Lovett
deposition, 66). l
7. Lovett testified that he had planned to keep this knowledge of his
interaction with Lieutenant Harvey to himself but decided that he would not hide p
anything during his deposition. (Lovett Deposition, 66, 67, 68) Asked about

Case 1 :04-cv-01391-JJF Document 87 Filed 12/07/2007 Page 3 of 4
Lieutenant Harvey’s response to Officer Lovett’s expressions of concems, Lovett
l said that, "He kind of blew it off" (Lovett deposition, 68).
8. The testimony from Officer Lovett reveals that Lieutenant Paul Harvey
was informed of inmate Jol*mson’s erratic behavior and "blew it off ’ rather than n
taking affirmative action that would have prevented inmate Johnson from being
released into the outside recreational yard where he assaulted Mr. Ward.
9. Plaintiff respectfully makes this request for leave to add this defendant
because Plaintiff could not have reasonably known the allegations of the .
involvement of Lieutenant Paul Harvey until the close of discovery when Officer
Lovett’s deposition was taken.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant
leave to amend the Complaint to add Paul Harvey as a party defendant in this action.
Respectfully submitted,
_/S/__ 7/2,5;-% xt Mari 6 _/S/_,__ /r2»n.»¢ Q amiga r
JEFFREY K. MARTlN, ESQUIRE HERBERT G. FEUERHAKE, ESQUIRE
DE Bar LD. No.: 2407 DE Bar LD. No.: 2590 ‘
p Martin and Wilson, P.A. Herbert G. Feuerhake _
1508 Pennsylvania Ave 52l West St
Wilmington, DE l9806 Wilmington, DE l980l
g (302) 777-4681 (3 02) 65 8-6101 ·
I [email protected] [email protected] -
Attorneys for Plaintyf Attorneys for Plczintmf _
. DATED: December 7, 2007

Case 1 :04-cv-01301-JJF Document 87 Filed 12/07/2007 Page 4 of
CERTIFICATE OF SERVICE
U I hereby certify that on December 7, 2007 a true and correct copy ofthe Motion
for Leave to Amend the Complaint to Add Lieutenant Paul Harvey as a Party
Defendant, was tiled and served via CM/ECF upon the following counsel of record:
Stephani J. Ballard, Esquire
Deputy Attorney General
820 North French Street, 6th Floor
Wilmington, DE 19801
_/S/M_ nga; xt Meat i _/S/_ nasa-: Q fauna
JEFFREY K.- MARTIN, ESQUIRE HERBERT G. FEUERI-IAKE, ESQUIRE
DE Bar I.D. No.: 2407 DE Bar I.D. No.: 2590
Martin and Wilson, P.A. - Herbert G. Feuerhake `
1508 Pennsylvania Ave 521 West St
Wilmington, DE 19806 _ Wilmington, DE 19801
(302) 777-4681 (302) 658-6101
[email protected] [email protected]
Attorneys for Plaintxyf Attorneys for Plaintzyf
DATED: December 7, 2007 _ ·