Burno v. Lake Technical College

Filing 35

ORDER granting 30 Motion of Defendant, Lake County, to Dismiss Amended Complaint and Memorandum of Law; dismissing without prejudice the claims against Defendant Lake County, Florida; and denying without prejudice 34 Plaintiff's Response to Defendant's Motion to Dismiss Plaintiff's Amended Complaint, to the extent that it seeks leave to file an amended complaint. Plaintiff shall have up to and including MAY 31, 2016, to file a proper motion seeking leave to file an amended complaint after complying with the Federal Rules of Civil Procedure and the Local Rules of the Middle District of Florida. See Order for details. Signed by Judge Marcia Morales Howard on 4/28/2016. (APH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

LAMAR BURNO,
Plaintiff,
Case No. 5:15-cv-93-J-34PRL
vs.
LAKE COUNTY, FLORIDA,
Defendant.
/
ORDER
THIS CAUSE is before the Court on the Motion of Defendant, Lake County, to
Dismiss Amended Complaint and Memorandum of Law (Doc. 30; Motion to Dismiss). In
response, Plaintiff filed Plaintiff[’s] Response to Defendant’s Motion to Dismiss Plaintiff’s
Amended Complaint (Doc. 34; Response). Although Plaintiff states at the beginning of his
Response that he is responding “in opposition to the [Motion to Dismiss],” he later states
that he “understands that Lake County can[]not be held liable for the actions of the Sheriff
and/or his deputies,” and requests “that Defendant’s Motion to Dismiss be granted as to
Defendant, Lake County.” See Response at 1–3. In light of these statements, the Court
will grant the Motion to Dismiss and dismiss the claims against Lake County without
prejudice.
In addition to asking that the Motion to Dismiss be granted, in the body of the
Response, Plaintiff seeks leave to file an amended complaint to “add the proper
Defendants.” See id. at 3. The Court takes the opportunity to advise Plaintiff that the
inclusion of his request for affirmative relief within the Response, rather than filing a motion,

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is improper. See Rule 7(b)(1), Federal Rules of Civil Procedure (Rules(s)); see also
Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (“Where a request for leave to file
an amended complaint simply is imbedded within an opposition memorandum, the issue
has not been raised properly.”) (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222
(11th Cir. 1999)). Moreover, Plaintiff has failed to comply with Rule 3.01(g), Local Rules,
United States District Court, Middle District of Florida (Local Rules(s)), with respect to the
request to file an amended complaint.

Accordingly, the request to file an amended

complaint is not properly before the Court at this time. Plaintiff shall have up to and
including May 31, 2016, to file a motion for leave to file an amended complaint. Plaintiff is
cautioned that he must include his proposed amended complaint as an attachment to his
motion for leave to file an amended complaint. See Long v. Satz, 181 F.3d 1275, 1279–
80 (11th Cir. 1999).
In light of the foregoing, it is hereby ORDERED:
1. To the extent that Plaintiff’s Response to Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. 34) seeks leave to file an amended
complaint, such request is DENIED, without prejudice.
2. Plaintiff shall have up to and including MAY 31, 2016 to file a proper motion
seeking leave to file an amended complaint, if necessary, after complying with
Local Rule 3.01(g).

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3. Motion of Defendant, Lake County, to Dismiss Amended Complaint and
Memorandum of Law (Doc. 30) is GRANTED and the claims against Defendant
Lake County, Florida are DISMISSED without prejudice.
DONE AND ORDERED in Chambers this 28th day of April, 2016.

lc20
Copies to:
Pro se party
Counsel of Record

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