McAninch v. Tucker et al

Filing 22

ORDER denying 11 motion to dismiss; granting plaintiff leave to file an amended complaint (amended complaint due 3/1/2013; response due 3/29/2013); denying 19 Motion for status conference; denying without prejudice 21 Motion to Compel; Case Management and Scheduling Order to issue separately. Signed by Judge Timothy J. Corrigan on 2/12/2013.(SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DENNIS NEAL McANINCH,
Plaintiff,
vs.

Case No. 3:12-cv-899-J-32TEM

SECRETARY, DEPARTMENT OF
CORRECTIONS,
et al.,
Defendants.

ORDER
This case is before the Court on defendants’ Motion to Dismiss (Doc. 11), to which
plaintiff has filed a response in opposition (Doc. 18). Although plaintiff maintains the position
that the current complaint meets the pleading standards, plaintiff seeks leave to file an
amended complaint to cure what plaintiff deems to be rather technical defects. Upon review
of plaintiff’s complaint and proposed amended complaint, and especially in light of the
attached grievances which give defendants additional information, the Court agrees that
defendants are placed on adequate notice of the causes of action plaintiff brings and their
factual underpinnings. See F.R.C.P. Rule 8; Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(“Specific facts are not necessary; the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’” (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Defendants’ motion to dismiss (Doc. 11) is therefore
denied.

The Court will grant plaintiff leave to file an amended complaint, but before simply
filing the proposed amended complaint attached to the response to the motion to dismiss,
plaintiff is directed to more carefully edit it so that we are not wasting time with later
corrections by interlineation.1 Plaintiff is directed to file an amended complaint no later than
March 1, 2013. Defendants shall respond to that filing no later than March 29, 2013.2
A Case Management and Scheduling Order is issuing shortly as well, and plaintiff’s
motion for status (Doc. 19) is therefore denied with the Court’s apologies for not being able
to attend to this case any earlier.3 Plaintiff’s motion to compel responses to discovery (Doc.
21) is denied without prejudice. Plaintiff’s description of the discovery sought is too vague
for the Court to order compliance. In addition, the Court hopes that the entry of the Case
Management and Scheduling Order will give the parties’ guidance in meeting their discovery
obligations without a Court Order.

1

For example, paragraphs 73 and 74 in the proposed amended complaint seem entirely
misplaced. Additionally, plaintiff’s last two filings make reference to recent incidents that
plaintiff may be intending to include in the amended complaint. Moreover, there is a new
Secretary of the Department of Corrections.
2

The Court anticipates defendants will answer the amended complaint but will not
preclude them from seeking dismissal as to any new material plaintiff adds.
3

The Jacksonville Division has a long-standing judicial vacancy that has caused a backlog
on the existing dockets of the active district judges.
2

DONE AND ORDERED at Jacksonville, Florida this 12th day of February, 2013.

s.
Copies:
counsel of record

3