Jordan v. Sherrod et al

Filing 89

ORDER GRANTING 74 MOTION to Dismiss Defendants Cartwright, Smith, and Kalaher, with prejudice filed by Jimmie Jordan; DENYING 83 MOTION to Strike 80 MOTION for Partial Summary Judgment filed by Jimmie Jordan; FINDING AS MOOT 78 Second MOTION for Extension of Time to File a Dispositive Motion filed by Major Kalaher, Lt Eovaldi, James Smith, Anthony D McAllister, Lyndol Qualls, C. Sherrod, K Cartwright; DENYING 88 MOTION for a Telephonic Status Conference< /i> filed by Jimmie Jordan; GRANTING IN PART 85 MOTION to Dismiss Excessive Force Claim Against Defendant McAllister filed by Jimmie Jordan; and FINDING AS MOOT 82 MOTION Set Pretrial Conference and Trial dates filed by Jimmie Jordan. Plaintiff shall file any supplemental response to 80 MOTION for Partial Summary Judgment by 7/27/2017. The trial schedule is ENTERED as follows: Final Pretrial Conference set for 11/28/2017 at 2:00 PM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson. Jury Trial set for 12/13/2017 at 9:00 AM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson. Signed by Magistrate Judge Donald G. Wilkerson on 7/19/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMIE JORDAN,

)
)
)
Plaintiff,
)
)
v.
)
C/O SHERROD, LT. EOVALDI, LYNDOL )
)
QUALLS, SGT. K. CARTWRIGHT,
)
ANTHONY D. MCALLISTER, JAMES
)
SMITH, and MAJOR KALAHER,
)
)
Defendants.

Case No. 3:15-cv-97-DGW

ORDER
WILKERSON, Magistrate Judge:
This matter is before the Court for case management purposes and to address a number of
motions pending before the Court. By way of background, Plaintiff Jimmie Jordan, through
counsel, filed this action on January 29, 2015 pursuant to 42 U.S.C. § 1983 alleging his
constitutional rights were violated by Officer Christopher Sherrod and John Doe defendants (see
Doc. 2). Plaintiff was granted leave to file an amended complaint on October 1, 2015 (Doc. 25).
Plaintiff’s amended complaint named a number of additional defendants, including Lt. Eovaldi,
Lt. Qualls, Lt. Cartwright, Lt. McAllister, Major Smith and Major Kalaher (Doc. 26). Although
lacking in clarity, it appears Plaintiff set forth claims of excessive force, failure to intervene, and
deliberate indifference against all Defendants, as well as a claim of supervisory liability against the
“Supervisory Defendants” for failing to intervene.

Plaintiff also included a claim for

indemnification under the State Employee Indemnification Act, 5 ILCS 350/2.
Since the filing of the amended complaint Plaintiff filed a motion to dismiss Defendants
Cartwright, Smith, and Kalaher with prejudice (Doc. 74) as well as a motion to dismiss the
Page 1 of 4

excessive force claim against Defendant McAllister with prejudice (Doc. 85).

Defendants

Eovaldi, McAllister, Qualls, and Sherrod also filed a motion for partial summary judgment (Doc.
80) that Plaintiff seeks to strike (Doc. 83).
The Court first considers the motion to dismiss Defendants Cartwright, Smith, and Kalaher
with prejudice (Doc. 74). Defendants assert they have no objection to the motion, but indicate
they do not waive costs as to any Defendants whose claims remain pending (see Doc. 77).
Although Plaintiff fails to invoke any legal authority for the dismissal, it appears he seeks to
dismiss Defendants pursuant to Rule 41(a)(2). A plain reading of Federal Rule of Civil Procedure
41(a) suggests that dismissal under this Rule should be used only to dismiss an entire action rather
than a particular claim against a particular defendant. See Taylor v. Brown, 787 F.3d 851, 857
(7th Cir. 2015) (Rule 41(a) is limited to dismissal of an entire action and Rule 15(a) is the proper
vehicle for adding or dropping parties and claims). While the Court acknowledges the plain
reading of the rule, it finds that dismissing Defendants Cartwright, Smith, and Kalaher, rather than
ordering amendment of the complaint, is in the interest of judicial economy. Accordingly,
Plaintiff’s motion (Doc. 74) is GRANTED and Defendants Cartwright, Smith, and Kalaher are
DISMISSED WITH PREJUDICE. With regard to costs, each party shall bear their own;
however, any costs that may be associated with any remaining Defendants shall not be waived.
The next issue before the Court is the motion for partial summary judgment filed by
Defendants Eovaldi, McAllister, Qualls, and Sherrod (Doc. 80). Defendants’ motion was filed on
December 5, 2016. Prior to filing said motion, Defendants filed a second motion for extension of
time to file a dispositive motion that remains pending (see Doc. 78). Plaintiff filed a motion to
strike Defendants’ motion for summary judgment arguing it was untimely and filed without being
given leave of court. Plaintiff further argues that Defendants’ motion is meritless and engaging in
Page 2 of 4

full briefing on the motion will only cause undue delay. The Court finds that Defendants showed
good cause for their second request for extension of time and rejects Plaintiff’s argument that the
motion is baseless, particularly without full briefing. Accordingly, Plaintiff’s motion to strike
(Doc. 83) is DENIED. Defendants’ motion for extension of time (Doc. 78) is MOOT as the
Court will consider Defendants’ Motion for Partial Summary Judgment as timely filed. As
Plaintiff addressed many of Defendants’ summary judgment arguments in his motion to strike and
subsequent reply, the Court will allow only supplemental briefing, limited to 8 pages. Any
supplemental response shall be filed by July 27, 2017.
Finally, the Court considers Plaintiff’s Motion to Dismiss the Excessive Force Claim
against Defendant McAllister (Doc. 85). Again, Plaintiff fails to cite any legal authority for the
dismissal, though it appears he seeks to dismiss the excessive force claim against McAllister
pursuant to Rule 41(a)(2). As set forth above, a plain reading of Federal Rule of Civil Procedure
41(a) suggests that dismissal under this Rule should be used only to dismiss an entire action rather
than a particular claim against a particular defendant. See Taylor, 787 F.3d at 857 (Rule 41(a) is
limited to dismissal of an entire action and Rule 15(a) is the proper vehicle for adding or dropping
parties and claims). While the Court acknowledges the plain reading of the rule, it finds that
dismissing the excessive force claim against Defendant McAllister, rather than ordering
amendment of the complaint, is in the interest of judicial economy. Accordingly, Plaintiff’s
motion to dismiss (Doc. 85) is GRANTED IN PART. The Eighth Amendment excessive force
claim against Defendant McAllister is DISMISSED WITH PREJUDICE. However, insofar as
Plaintiff argues that granting this Motion obviates the need to address Defendants’ motion, any
such relief surrounding this argument is DENIED. Defendants’ argument addresses more than
the excessive force claim against Defendant McAllister and, although that issue is moot, the other
Page 3 of 4

arguments remain pending.
The Court also ENTERS the following trial schedule in this case:
1. Final Pretrial Conference set for November 28, 2017 at 2:00 p.m.
2. Jury trial set for December 13, 2017 at 9:00 a.m.
In light of this Order, Plaintiff’s Motion to Set a Pretrial Conference and Trial Date (Doc.
82) is MOOT. Also, the Court DENIES Plaintiff’s Motion for a Telephonic Status Conference
(Doc. 88).
IT IS SO ORDERED.
DATED: July 19, 2017

DONALD G. WILKERSON
United States Magistrate Judge

Page 4 of 4