Ward v. Franciscy

Filing 19

OPINION AND ORDER DENYING 17 MOTION for Default Judgment by Plaintiff Kerwin M Ward.Signed by Judge William C Lee on 5/4/11. (cer). Modified on 5/5/2011. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KERWIN M. WARD,

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Plaintiff,
v.
JOSHUA FRANCISCY, et al.,
Defendants.

CAUSE NO. 1:10cv0429 WL

OPINION AND ORDER
This matter is before the Court on the motion for default judgment filed by Plaintiff
Kerwin Ward, a pro se prisoner. The original complaint named Fort Wayne Police Officer
Joshua Franciscy as the sole defendant. The Court screened the original complaint on January
26, 2011, and ordered the Marshals Service to serve Defendant Franciscy. Service was executed
on Defendant Franciscy on February 8, 2011. Defendant Franciscy did not enter an appearance
or file a response to the original complaint.
The Plaintiff filed an amended complaint, naming Officer Franciscy and Fort Wayne
Police Officer Michael Bell as defendants. An amended Complaint supercedes and replaces the
original complaint. See Flannery v. Recording Indus. Assoc. Of Am., 354, F.3d 632, 638 n.1 (7th
Cir. 2004). The Court screened the amended complaint on April 20, 2011, allowed the Plaintiff
to proceed against both defendants, ordered the Marshals Service to serve both defendants with
process, and ordered the defendants to respond to the complaint in accordance with 42 U.S.C. §
1997e(g)(2). According to the docket, the amended complaint has not yet been served on either
defendant.

The plaintiff seeks a default judgment against Defendant Franciscy, asserting that he has
not appeared and defended against the original complaint. The Plaintiff’s argument would have
merit if the original complaint had not already been superceded and replaced by the amended
complaint. But Ward filed an amended complaint in this case which has superseded and
replaced his original complaint. The Court screened the amended complaint, on April 20, 2011,
ordered it served on both defendants, and ordered both defendants to respond to the amended
complaint. After the screening order was entered, Defendant Franciscy was no longer under any
obligation to respond to the original complaint. Accordingly, the Plaintiff’s motion for default
judgment filed on May 2, 2011, is without merit because Defendant Franciscy has not yet been
served with the amended complaint, and is under no obligation to respond to the amended
complaint until it has been served on him.
For the foregoing reasons, the Court DENIES the Plaintiff’s motion for Default Judgment
against Defendant Franciscy (DE 17).
SO ORDERED.
DATED: May 4, 2011
s/William C. Lee
William C. Lee, Judge
United States District Court

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