Appeal from the Superior Court of the District of Columbia (CA-3572-97) (Hon. Mildred M. Edwards, First Trial Judge) (Hon. John H. Bayly, Jr., Second Trial Judge)
Before Terry, Steadman, and Farrell, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appellant Pannell sued the District of Columbia, seeking damages for injuries which he allegedly sustained while he was a prisoner in the custody of the District of Columbia Department of Corrections. The trial court denied two motions by appellant for leave to amend his complaint and later granted the District's motion for summary judgment. From that order Pannell noted this appeal. We affirm.
On September 21, 1994, appellant was in the custody of the District of Columbia, awaiting an appearance before the Superior Court, when he was allegedly assaulted and sustained injuries. Nearly three years later, in May 1997, appellant filed a one-count complaint against the District of Columbia alleging negligent supervision. In his complaint appellant stated:
That the Plaintiff, while under the control and custody of the Defendant District of C olumbia in the holding cell, was severely beaten and physically and sexually abused by other individuals within the care, custody, control and/or supervision of the Defendant District of Columbia.
That the agents, servants, and/or employees of the District of Columbia breached [their] duties when they failed to: keep the Plaintiff in a reasonably safe environment; take reasonable steps to ensure the Plaintiff's physical and psychological safety as against others similarly under Defendant's supervision and control; take adequate measures to supervise others within and without the holding cell to ensure that they did not physically and/or sexually attack the Plaintiff and cause him injury.
About nine months later, during a deposition taken on February 11, 1998, appellant stated that he had been abused by police officers in addition to the other prisoners in the holding cell. *fn1 More than sixteen m onths after that, on June 25, 1999, appellant moved for leave to amend his complaint by adding a count related to the alleged assault by police officers. The court denied appellant's motion because there had been too great a delay (more than two years) between the filing of the complaint and the filing of the motion for leave to amend.
On September 2, 1999, the District of Columbia took the deposition of appellant's standard-of-care expert, Thomas Rosazza. Some time later, the District filed a motion in limine to exclude Mr. Rosazza's testimony. The court granted the motion in part as to Rosazza's proposed testimony about the standards of care related to excessive force by the police, negligent training of police officers, and negligent supervision of police officers, ruling that such testimony would be irrelevant at trial, given the allegations set forth in the complaint. The court also held that the complaint could be fairly read only to mean that the negligent supervision count was aimed at the supervision of other prisoners and not at the District's supervision of its own police officers, wardens, or custodians. The case was then reassigned in the ordinary course to a different judge.
On January 6, 2000, appellant filed another motion to amend the complaint. In this second motion, appellant sought to add an additional negligent supervision count aimed at the District's supervision of its police officers, wardens, or custodians. The second judge denied this motion as well, stating that the first judge's order denying the first motion to amend remained the law of the case, absent any new law or new facts shown by appellant. The judge also said that appellant should have been aware of the facts underlying his allegation of police involvement much earlier, even before he originally filed his complaint. Finally, the judge noted that appellant had still failed to explain the delay between the date of his deposition, when he described the beating by police, and the filing of the first motion to amend the complaint.
On August 1, 2000, the District filed a renewed motion for summary judgment, *fn2 arguing that appellant had failed to d esignate an expert who could testify about a national standard of care concerning the duty to supervise other prisoners and to maintain a safe environment. Agreeing with the District that appellant could not prove an essential element of his case, the court granted the motion for summary judgment.
Appellant's first claim of error is that the trial court erred in denying his two motions to amend the complaint. Leave to amend a complaint after the filing of responsive pleadings (as in this case) is a matter within the discretion of the trial court. See Crowley v. North American Telecommunications Ass'n, 691 A.2d 1169, 1174 (D.C. 1997); Johnson v. Fairfax Village Condominium IV Unit Owners Ass'n, 641 A.2d 495, 501 (D.C. 1994); Super. Ct. Civil Rule 15 (a). However, the policy that favors resolution of disputes on the merits creates a "virtual presumption" that leave to amend should be granted unless there are sound reasons for denying it. See Johnson, 641 A.2d at 501. Factors affecting the court's discretion include: "(1) the number of requests to amend; (2) the length of time that the case has been pending; (3) the presence of bad faith or dilatory reasons for the request; (4) the merit of the proffered amended pleading; and (5) any prejudice to the non-moving party." Crowley, 691 A.2d at 1174. The lateness of a motion for leave to amend, ...