Abella v. Simon, et al.

Filing 52

ORDER granting 37 Plaintiff's Motion to Make Correction on Defendant Nancy Simon Inclusion of the Amended Complaint; granting 38 Plaintiff's Motion Requesting Extension of Time to Respond; and denying 51 Defendant Nancy Simon's Motion to Strike or, in the Alternative, Response to Plaintiff's Motion to Deny Simon's Motion to Dismiss. Signed by Magistrate Judge Andrea M. Simonton on 6/15/2011. (mmn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-20152-CIV-ALTONAGA/SIMONTON
GUSTAVO A. ABELLA,
Plaintiff,
v.
NANCY SIMON, et al.,
Defendants.
/
ORDER GRANTING PLAINTIFF’S MOTION TO MAKE CORRECTION AND
PLAINTIFF’S MOTION REQUESTING EXTENSION OF TIME, AND
DENYING DEFENDANT’S MOTION TO STRIKE
Before the Court are (a) Plaintiff’s Motion to Make Correction on Defendant Nancy
Simon Inclusion of the Amended Complaint (DE # 37), (b) Plaintiff’s Motion Requesting
Extension of Time to Respond (DE # 38), and (c) Defendant Nancy Simon’s Motion to
Strike or, in the Alternative, Response to Plaintiff’s Motion to Deny Simon’s Motion to
Dismiss (DE # 51). The Honorable Cecilia M. Altonaga, United States District Judge, has
referred this case to the undersigned Magistrate Judge with respect to rulings on all
pretrial, non-dispositive matters, and for issuance of a report and recommendation with
respect to any dispositive matter (DE # 8, 24). This Order sets forth the rulings on these
Motions and the reasons for such rulings. It is hereby
ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Motion to Make Correction on Defendant Nancy Simon Inclusion of
the Amended Complaint (DE # 37) is GRANTED. “Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (citation
omitted). The undersigned notes that while the capacity in which Defendant Nancy

Simon has been sued is unclear in the caption of the Amended Complaint, the
allegations of the Amended Complaint address Ms. Simon in her individual capacity and
as an elected official. Moreover, the undersigned notes that Defendant Simon’s Motion
to Dismiss or for a More Definite Statement has addressed both capacities (DE # 36).
Therefore, the caption of this case shall be amended by interlineation to include as a
Defendant “Nancy Simon, in both her individual and official capacities,” thus clarifying
the Amended Complaint. This Order, however, does not constitute a ruling on the merits
of Defendant’s pending Motion to Dismiss or for a More Definite Statement, nor does this
amendment by interlineation constitute a new pleading. Since it is merely a clarification
of the intent of the pro se Plaintiff, the pending Motions to Dismiss are unaffected and
remain pending.
2. Plaintiff’s Motion Requesting Extension of Time to Respond (DE # 38) is
GRANTED. Plaintiff’s Motion to Deny Defendant Nancy Simon’s Motion to Dismiss or
for a More Definite Statement (DE # 42) shall be deemed a timely response to Defendant’s
Motion. Defendant Simon may reply to Plaintiff’s response within seven days of this
Order.
3. Defendant Nancy Simon’s Motion to Strike or, in the Alternative, Response to
Plaintiff’s Motion to Deny Simon’s Motion to Dismiss (DE # 51) is DENIED, based on the
undersigned’s ruling above that Plaintiff’s Motion to Deny (DE # 42) shall be deemed a
timely response to Defendant’s Motion to Dismiss, and that Defendant Simon shall have
an opportunity to file a reply.
DONE AND ORDERED in chambers in Miami, Florida, on June 15, 2011.

________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
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Copies furnished via CM/ECF to:
The Honorable Cecilia M. Altonaga,
United States District Judge
All counsel of record

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