United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Hargrave Military
Academy's (“Hargrave”) Motion for Summary
Judgment. Hargrave contends that the charitable immunity
doctrine shields it from liability against Plaintiff Miles
Agbaje's (“Plaintiff”) negligence claim. The
matter was fully briefed by the parties, and I heard oral
argument during a telephonic hearing on July 5, 2018. I have
reviewed the pleadings, evidence of the parties, and
arguments, and the matter is now ripe for disposition. For
the reasons stated herein, I find that Hargrave was organized
and does operate with a charitable purpose, and that
Plaintiff was a beneficiary of Hargrave's charity at the
time of his injury. Accordingly, Hargrave is entitled to the
immunity afforded by the charitable immunity doctrine, and
its motion for summary judgment will be granted.
STATEMENT OF FACTS AND PROCEDURAL
is a military boarding school located in Chatham, Va. In
December of 2013, Plaintiff, a Maryland resident, was a
student at Hargrave and was a member of Hargrave's junior
varsity basketball team. During practice on December 4, 2013,
Coach Tom Messenger required Plaintiff to run a drill which
required him to drive to the basket while Messenger stood in
his path with a pad to simulate a defender. While driving
past Messenger, Messenger hit Plaintiff with the pad and
caused him to fall. Plaintiff injured his knee.
Walker took Plaintiff to the hospital, and he was diagnosed
with a knee sprain. He was told to avoid military formations,
drills, and basketball, and was further instructed to rest
and ice his knee. Plaintiff left the hospital on crutches.
During his recovery, Robert Spears,  a Teacher and Counselor
(“TAC”) Officer with duties that included
overseeing barracks life and enforcing Hargrave's rules
and policies, required Plaintiff to march and perform drills.
As part of the drills, Plaintiff was required to crawl and
bend his knee and carry a heavy rifle. Despite his complaints
and swelling leg, Spears required Plaintiff to complete the
drills as instructed. When Plaintiff complained that the
drills were aggravating his knee injury, Hargrave's staff
did not return Plaintiff to the hospital for follow-up care.
Rather, he was seen and treated by Hargrave's team
parents picked him up for break on December 20, approximately
two weeks after his injury. Upon his return to Maryland, he
was seen by an orthopedic surgeon on December 26 and
diagnosed with a torn anterior cruciate ligament
(“ACL”). Plaintiff underwent surgery on his knee
on January 17, 2014, and followed up with post-operative care
for approximately one year.
filed suit in this Court on August 11, 2017, asserting a
single count of negligence against Hargrave. He is ostensibly
proceeding pro se. On May 23, 2018, Plaintiff filed
a Motion for Leave to File an Amended Complaint [ECF No. 26],
seeking to add a claim for gross negligence. That same day,
Hargrave filed the present Motion for Summary Judgment [ECF
No. 28], arguing that the doctrine of charitable immunity
applies and bars Plaintiff's action for simple
negligence. On May 31, Plaintiff filed a Supplemental Motion
for Leave to File an Amended Complaint [ECF No. 34], which
sought to add both a claim of gross negligence and a claim of
negligent hiring/retention. I held a telephonic hearing on
the Motions for Leave on June 16; Plaintiff did not
participate. Later that day, I entered an Order denying
the Motions for Leave to File an Amended Complaint [ECF No.
48.] At that time, I stated that a “Memorandum Opinion
setting forth the basis for this decision will be
Hargrave's Motion for Summary Judgment, the matter was
fully briefed by the parties and I heard oral argument on the
Motion by telephone on July 5, 2018. I have fully reviewed
the briefs, argument, and evidence of the parties, and this
Opinion sets for the reasoning for my decisions on both the
Motions for Leave to Amend and the Motion for Summary
STANDARD OF REVIEW
who is proceeding pro se, is entitled to a certain
level of deference in his pleadings by virtue of his status
as an unrepresented litigant. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). However, “the
requirement of liberal construction [of pleadings for pro
se parties] does not mean that the court can ignore a
clear failure in the pleadings to allege facts which set
forth a federal claim, nor can the court assume the existence
of a genuine issue of material fact where none exists.”
Knowles v. S. C.D.C., No. 2:09-1921-MBS, 2010 WL
2990157, at *3 (D.S.C. July 29, 2010).
should grant leave to file an amended complaint freely
“when justice so requires . . . .” Fed.R.Civ.P.
15(a)(2). “[L]eave to amend a pleading should be
denied, however, “when the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would have
been futile.” Johnson v. Oroweat Foods Co.,
785 F.2d 503, 509 (4th Cir. 1986) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). “[D]elay alone
is not sufficient reason to deny leave to amend. The delay
must be accompanied by prejudice, bad faith, or
futility.” Id. at 509-10 (citing Davis v.
Piper Aircraft Co., 615 F.2d 606, 613 (4th Cir.), cert.
denied, 448 U.S. 911 (1980)).
judgment is appropriate where there is no genuine dispute of
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); George & Co. LLC
v. Imagination Entertainment Ltd., 575 F.3d 383, 392
(4th Cir. 2009). A genuine dispute of material fact exists
“[w]here the record taken as a whole could…lead
a rational trier of fact to find for the nonmoving
party.” Ricci v. DeStefano, 557 U.S. 557, 586
(2009) (internal quotation marks and citing reference
omitted); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A genuine dispute cannot be created
where there is only a scintilla of evidence favoring the
nonmovant; rather, the Court must look to the quantum of
proof applicable to the claim to determine whether a genuine
dispute exists. Scott v. Harris, 550 U.S. 372, 380
(2007); Anderson, 477 U.S. at 249-50, 254. Not every
factual dispute will defeat a summary judgment motion; there
must be a genuine dispute over a material
fact. Anderson, 477 U.S. at 247-48. A fact is
material where it might affect the outcome of the case in
light of the controlling law. Id. at 248. On a
motion for summary judgment, the facts are taken in the light
most favorable to the non-moving party insofar as there is a
genuine dispute about those facts. Scott, 550 U.S.
at 380. At this stage, however, the Court's role is not
to weigh the evidence, but simply to determine whether a
genuine dispute exists making it appropriate for the case to
proceed to trial. Anderson, 477 U.S. at 249.
Plaintiff's Motions for Leave to File Amended
Motions for Leave to File Amended Complaints were brought in
the waning hours of discovery. While delay alone “is
not sufficient reason to deny leave to amend, ”
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th
Cir. 1986) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)), Plaintiff's amendments are prejudicial to
Hargrave and brought for the purposes of avoiding
Hargrave's Motion for Summary Judgment.
amended pleading is prejudicial if it adds “a new legal
theory that would require the gathering and analysis of facts
not already considered by the opposing party, but that basis
for a finding of prejudice applies where the amendment is
offered shortly before . . . trial.” Id. Here,
the amendments were both offered immediately before the close
of discovery, with the second amended complaint coming one
day before discovery closed). While the allegation of gross
negligence does not change the nature of the case, the
allegation regarding negligent retention of Spears does. A
case of negligence concerns Hargrave's actions in
responding to Plaintiff's injuries; a case of negligent
retention focuses on Spears's employment history and
Hargrave's decisions in dealing with him. The former
focuses on Plaintiff, while the latter has nothing to do with
him. Drastically expanding the focus at this late date is
undoubtedly prejudicial to Hargrave.
accurately paints a portrait of a Plaintiff who was
disinterested in his own case until the last minute.
(See Def.'s Br. in Supp. of Def.'s Mot. for
Summ. J. pgs. 2-4, June 1, 2018 [ECF No. 41].) He has failed
to engage in meaningful discovery, and failed to coordinate
with opposing counsel to schedule his own deposition. He
routinely claims that mail was not sent to him, a claim he
has made against the court clerk as well. Although he is
pro se, there is ample evidence to suggest that his
father, an attorney, has been aiding Plaintiff throughout
these proceedings. Plaintiff's failure to plan and pursue
his case compounds the prejudice to Hargrave of a last-minute
amendment is also sought in an effort to avoid summary
judgment. As discussed more fully infra, the
doctrine of charitable immunity generally bars simple
negligence actions in Virginia against a charity brought by a
beneficiary of that charity. See, e.g., Ola v.
YMCA of S. Hampton Roads, 621 S.E.2d 70, 72 (Va. 2005).
On the same day that Hargrave filed its Motion for Summary
Judgment, Plaintiff filed his first proposed amended
complaint. Even though he is pro se, the issue of
charitable immunity was first raised in Hargrave's
Answer. (See Answer, Aff. Defs. ¶ 4, Oct. 27,
2017 [ECF No. 7].) Despite knowing over six months
ago that charitable immunity was an issue in this case,
Plaintiff waited until the eve of the close of discovery to
propose a cause of action that was not barred by the
charitable immunity doctrine. His last-minute claims, filed
on the same day as Hargrave's Motion for Summary
Judgment, were clearly an effort to salvage his case and
avoid summary judgment. Such conduct evinces Plaintiff's
bad faith in pursuing the amendment. See Witmeyer v.
Kilroy, 788 F.2d 1021, 1024 (4th Cir. 1986) (applying
the doctrine of laches in holding that a denial of leave to
amend was proper); Sandcrest Outpatient Servs., P.A. v.
Cumberland Cnty. Hosp. Sys., Inc., 853 F.2d 1139, 1149
(4th Cir. 1988). See also Wimm v. Jack Eckerd Corp.,
3 F.3d 137, 139-40 (5th Cir. 1993).
Plaintiff's proposed amended complaints are prejudicial
to Hargrave and pursued in bad faith, leave to amend was
Hargrave's Motion for Summary Judgment
to the Supreme Court of Virginia:
Virginia has favored a limited form of charitable immunity
which exempts charitable organizations from some, but not
all, tort liability. See Weston's Adm'x v.
Hospital of St. Vincent, 107 S.E. 785, 792-93 (Va.
1921). A charitable institution is immune from liability to
its beneficiaries for negligence arising from acts of its
servants and agents, but only if due care has been exercised
in their selection and retention. Bailey v. Lancaster
Ruritan Rec. Ctr., Inc., 504 S.E.2d 621, 622 (Va. 1998).
That immunity does not extend, however, to invitees or
strangers having no beneficial relationship to the charitable
institution. Thrasher v. Winand, 389 S.E.2d 699, 701
(Va. 1990). Further, the shield of ...