Hilliard et al v. Godinez et al

Filing 63

ORDER STRIKING 60 Amended Complaint filed by Deon D. Hilliard. Signed by Magistrate Judge Donald G. Wilkerson on 11/10/16. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEON D. HILLIARD,
Plaintiff,
v.
JAMES LUTH,
Defendant.

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Case No. 3:15-cv-5-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
This matter is before the Court sua sponte. On August 8, 2016, Plaintiff filed a First
Amended Complaint (Doc. 60). It has been more than 21 days since his original complaint was
filed (which was on January 5, 2015) and more than 21 days since a responsive pleading was filed
(an Answer was filed on May 27, 2015). Therefore, Plaintiff could not, pursuant to Federal Rule
of Civil Procedure 15(a)(1), file an amended pleading as a matter of right. Plaintiff should have
filed a motion to amend the complaint as required by Rule 15(a)(2) (there is no indication that
Defendant consented to the filing of an amended pleading).
In light of Plaintiff’s pro se status, this Court would normally construe the pleading as a
motion to amend. However, the circumstances in this case do no support such leniency. The
original deadline for filing a motion to amend was April 8, 2016 (Doc. 45). That deadline was
extended to May 9 at Plaintiff’s request (Doc. 52), and finally to July 29, again at Plaintiff’s
request (Doc. 59). Plaintiff’s amended pleading, however, was not filed until August 8, 2016, 10
days after the deadline. There is no explanation of why Plaintiff did not file this document within
the time allowed by the Court nor why he failed to file a motion to amend after having been
explicitly directed by the Court to do so. That is, Plaintiff has not shown excusable neglect as
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required by Federal Rule of Civil Procedure 6(b)(1)(B).
At this late stage of the proceedings, dispositive motions are now due by November 14,
2016, Plaintiff seeks to add a number of new Defendants, a policy and practice claim, and an
“indemnification” claim against the State of Illinois. Such claims will unnecessarily delay these
proceedings and there is no explanation of why Plaintiff waited to assert such claims.
Therefore, the First Amended Complaint is hereby STRICKEN.
DATED: November 10, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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