PHILO v. REAMS, et al

Filing 46

ORDER: Plaintiff's 36 Request to Amend is DENIED. Defendant's 41 Motion to Strike Plaintiff's Reply is GRANTED. Plaintiff's 43 Motion for Acceptance is DENIED and 44 Request for Leave to File Responsive and Reply Pleadings is DENIED. Signed by MAGISTRATE JUDGE GARY R JONES on 8/7/2012. (jws)

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
RONDY ALEXIS PHILO,
Plaintiff,
v.

CASE NO. 4:11-cv-394-SPM-GRJ

ROBERT REAMS, et al.,
Defendants.
_____________________________/
ORDER
This matter is before the Court on Doc. 36, Plaintiff’s Request for Leave to
Amend. Plaintiff says that he wants to file a first amended complaint “to correct defects
in the pleading and not the facts of the claim.” Plaintiff has attached to the motion a
copy of his proposed First Amended Complaint. Defendant has filed a Response, Doc.
38, opposing leave to amend. Without authorization Plaintiff has filed a Reply titled
“Plaintiff’s Answer to Defendant’s Response.” Doc. 40. Defendant has responded by
filing a Motion To Strike Plaintiff’s Reply. Doc. 41.
This case involves Plaintiff’s claim that his Eighth Amendment rights were
violated by Defendants, who are DOC employees, concerning an incident that occurred
on April 7, 2010. According to Plaintiff, Defendants Reams, Koch and Pridgeon kicked
and punched him and Defendant Dickey watched them attack Plaintiff. Presently
pending before the Court is a motion to dismiss in which the Defendants argue that any
claims against them in their official capacity are barred by Eleventh Amendment
immunity. The Eleventh Amendment bars suits brought against employees sued in their
official capacity for monetary damages because those actions actually seek recovery

Page 2 of 3

from state funds. Kentucky v Graham, 473 U.S. 159, 165-68 (1985). Because suit
against a state employee in his or her official capacity is not a suit against the official
but rather is a suit against the official’s office it is no different from a suit against the
state itself. Wills v Michigan Dept. Of State Police, 491 U.S. 58, 71 (1989).
The problem with the proposed amended complaint is that the changes Plaintiff
seeks to make relate primarily to his official capacity claims against the Defendants. As
such, it would be futile to permit the Plaintiff to amend claims that are due to be
dismissed based upon Eleventh Amendment immunity. The claims, if any, that may be
available to Plaintiff are the individual capacity claims and not the official capacity
claims. While Rule 15 of the Federal Rules of Civil Procedure provides that the Court
should “freely give leave when justice so requires” before granting leave to amend, the
Court must consider: (1) whether the amendment would be prejudicial to the opposing
party, and (2) whether the amendment would be futile. Foman v Davis, 371 U.S. 178,
182 (1962). Accordingly, for these reasons because the proposed amendment would
be futile leave to amend is due to be denied.
Additionally, because Plaintiff did not obtain permission to file a reply as required
by N.D. Fla. Loc. R. 7.1(C)(2) Defendant’s Motion To Strike Plaintiff’s Reply is due to
be granted.
Plaintiff has also filed a Request For Leave To Filed (sic) Responsive And Reply
Pleadings, Doc. 44, and Plaintiff’s Motion For Acceptance, Doc. 43. In both of these
motions Plaintiff requests the Court to accept his Reply and to grant him leave to file his
amended complaint. However, because the amendment would be futile, as explained in
detail above, each of these motions is due to be denied.
Case No: 4:11-cv-00394-SPM -GRJ

Page 3 of 3

Accordingly, upon due consideration, it is ORDERED:
1.

Plaintiff’s Request for Leave to Amend, Doc. 36, is DENIED.

2.

Defendant’s Motion To Strike Plaintiff’s Reply, Doc. 41, is GRANTED.

3.

Plaintiff’s Motion For Acceptance, Doc. 43 is DENIED.

4.

Plaintiff’s Request For Leave To Filed (sic) Responsive And Reply
Pleadings, Doc. 44, is DENIED.

DONE AND ORDERED this 7th day of August 2012.

s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge

Case No: 4:11-cv-00394-SPM -GRJ