McIntosh v. Kelly et al

Filing 89

ORDER GRANTING 48 MOTION /Notice to the Court of Clerical Error in the Scanning and E-Filing of Plaintiff's Third Amended Complaint re 39 Amended Complaint filed by Dallas McIntosh; FINDING AS MOOT 60 MOTION to Dismiss for Failure to State a Claim Plaintiff's Third Amended Complaint filed by Timothy Mueller, Jeff Blair, Jeff Stratman, Nicholas Gailius, City of Fairview Heights and 67 MOTION to Dismiss for Failure to State a Claim filed by James G Pipe r, Brendan F Kelly; and GRANTING 83 MOTION for Extension of Time to Complete Discovery filed by Dallas McIntosh, 81 Joint MOTION to Continue Pre-Trial and Trial Dates and Discovery and Dispositive Motion Deadlines filed by Timothy Mu eller, Jeff Blair, Jeff Stratman, Nicholas Gailius, City of Fairview Heights, and 52 MOTION for Extension of Time to Complete Discovery filed by Dallas McIntosh. The Scheduling Order is AMENDED as follows: Discovery due by 8/2/2019. Dispositi ve Motions due by 9/6/2019. Final Pretrial Conference set for 3/4/2020 at 10:00 AM in Benton Courthouse before Judge Staci M. Yandle., Jury Trial set for 3/16/2020 at 9:00 AM in Benton Courthouse before Judge Staci M. Yandle. Signed by Magistrate Judge Reona J. Daly on 10/2/2018. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DALLAS MCINTOSH,
Plaintiff,
v.
BRENDAN F. KELLY, et al.,
Defendants.

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Case No. 3:16-cv-1018-SMY-RJD

ORDER
DALY, Magistrate Judge:
This matter is before the Court to address several pending motions filed by Plaintiff (Docs.
48, 52, and 83), and Defendants (Docs. 60, 67, and 81). The Court’s rulings are set forth below.
Plaintiff Dallas McIntosh, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 for an unlawful traffic stop,
search, and seizure that allegedly occurred in Fairview Heights, Illinois, on September 25, 2012.
On March 6, 2018, this Court granted Plaintiff’s motion for leave to file a third amended complaint
in part (Docs. 37 and 38).
Plaintiff explains that there was an error in the scanning of his Third Amended Complaint
by the Court as said document was missing nearly a dozen pages that were never filed. Plaintiff
asserts that because of the omission of these pages he was not allowed to proceed on several state
law claims. Plaintiff contends that the Clerk’s office is “clearly in possession” of the missing
pages based on certain flaws he identifies in the copying. Plaintiff asks the Court to direct the
Clerk to produce the original pleading so that the Court may review it and order that the error be
corrected and the document re-filed in its entirety.
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When Plaintiff’s proposed amended third complaint was received by the Clerk’s Office,
there was an error in scanning the document.

Accordingly, only sixty-five pages of the

seventy-four page document were scanned and reviewed by the undersigned. The Court noted
this omission in its order granting in part and denying in part Plaintiff’s motion for leave to amend
(see Doc. 38), finding that because the paragraphs setting forth Plaintiff’s state law claims were not
included in the document reviewed by the Court, he could not proceed on such claims. The Court
has now been advised that following the filing of his Third Amended Complaint at Document 39,
it came to the attention of the Clerk’s Office that there were nine pages missing from the filed
document. After conducting a search for Plaintiff’s proposed third amended complaint in the
Clerk’s Office, the entire seventy-four pages were discovered and the Third Amended Complaint
(Doc. 39) was modified to include the additional pages. Thus, the Third Amended Complaint that
is now on file with the Court at Document 39 is the entirety of Plaintiff’s proposed amendment.
The Court has reviewed the additional allegations that were previously omitted and sets
forth Plaintiff’s proposed state law claims below:
Count Five:

State law claim against Defendants Stratman and Blair for the
unlawful stop, search and seizure of Plaintiff on September 25,
2012, in violation of Article I, Section 6 of the Illinois Constitution.

Count Six:

State law claim against Defendants Stratman and Blair for stopping
Plaintiff and searching him and/or his vehicle without probable
cause based on racial animus on September 25, 2012, in violation of
Article I, Section 2 of the Illinois Constitution.

Count Seven: State law claim against Defendant Gailius and the City of Fairview
Heights, Illinois for maintaining a policy, custom, or practice of
stopping individuals without probable cause based on racial animus,
in violation of Article I, Section 2 of the Illinois Constitution.
Count Eight: State law claim for fraud against Defendant Stratman for knowingly
and falsely stating that Plaintiff had committed an Illinois Vehicle
Code violation in order to induce Plaintiff to submit to the unlawful
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search and seizure.
Plaintiff shall be allowed to proceed on these claims at this juncture as Plaintiff’s motion
for leave to amend was not unduly delayed, futile, or brought with dilatory motive. See FED. R.
CIV. P. 15(a); see also Guise v. BMW Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004). In light
of this Order, Plaintiff’s Notice to Court of Clerical Error (Doc. 48) is GRANTED. Defendants’
pending motions to dismiss are MOOT (Docs. 60 and 67); however, such motions may be refiled
within the timeframe set forth in the Federal Rules of Civil Procedure so that Defendants may
respond to the additional allegations set forth in Counts Five through Eight. For clarification,
Plaintiff is now proceeding on the following claims:
Count One:

Fourth Amendment claim against Stratman and Blair for the unlawful stop,
search and seizure of Plaintiff on September 25, 2012.

Count Two:

Fourteenth Amendment equal protection claim against Stratman and Blair
for stopping Plaintiff and searching him and/or his vehicle without probable
cause.

Count Three: Fourteenth Amendment equal protection claim against the City of Fairview
Heights, Illinois, including Gailius, for maintaining a policy, custom or
practice of stopping individuals without probable cause based on racial
animus.
Count Four:

Conspiracy claims against Defendants Stratman, Blair, Gailius, Mueller,
Kelly, Piper and the City of Fairview Heights for working together to
deprive Plaintiff of his constitutional rights and covering up their
misconduct in connection with the traffic stop, search and seizure that
occurred on September 25, 2012.

Count Five:

State law claim against Defendants Stratman and Blair for the unlawful
stop, search and seizure of Plaintiff on September 25, 2012, in violation of
Article I, Section 6 of the Illinois Constitution.

Count Six:

State law claim against Defendants Stratman and Blair for stopping Plaintiff
and searching him and/or his vehicle without probable cause based on racial
animus on September 25, 2012, in violation of Article I, Section 2 of the
Illinois Constitution.
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Count Seven: State law claim against Defendant Gailius and the City of Fairview Heights,
Illinois for maintaining a policy, custom, or practice of stopping individuals
without probable cause based on racial animus, in violation of Article I,
Section 2 of the Illinois Constitution.
Count Eight: State law claim for fraud against Defendant Stratman for knowingly and
falsely stating that Plaintiff had committed an Illinois Vehicle Code
violation in order to induce Plaintiff to submit to the unlawful search and
seizure.
Given the current posture of this case, the Court GRANTS Plaintiff’s Motion for an
Extension of Discovery and Dispositive Motion Deadlines (Doc. 52), Defendants’ Joint Motion to
Continue Pre-Trial and Trial Dates and Discovery and Dispositive Motion Deadlines (Doc. 81),
and Plaintiff’s Second (Emergency) Motion for an Extension of Deadlines for Conducting
Discovery and Filing Dispositive Motions (Doc. 83), and ENTERS the following AMENDED
SCHEDULING ORDER:
1. All discovery, including expert discovery, shall be completed by August 2, 2019.
2. Any dispositive motions shall be filed by September 6, 2019.
3. Final Pretrial Conference is set for March 4, 2020 at 10:00 a.m.
4. Jury trial is set for March 16, 2020 at 9:00 a.m.
IT IS SO ORDERED.
DATED: October 2, 2018
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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