De Cola v. Starke County Election Board

Filing 35

OPINION AND ORDER: The court GRANTS Starke County Election Board's motion to dismiss for failure to state a claim 29 , DENIES as MOOT both Thomas DeCola's motions to join additional parties 27 and for oral argument 32 , and DIRECTS the clerk to enter judgment for the Starke County Election Board. This order terminates the case. Signed by Judge Damon R Leichty on 1/7/2021. (Copy mailed to pro se party by certified mail 7020 0640 0000 2334 8467)(bas)

USDC IN/ND case 3:20-cv-00409-DRL-MGG document 35 filed 01/07/21 page 1 of 2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
THOMAS DECOLA,
Plaintiff,
v.

CAUSE NO. 3:20-CV-409 DRL-MGG

STARKE COUNTY ELECTION BOARD,
Defendant.
OPINION & ORDER
On October 21, 2020, the court granted Starke County Election Board’s motion to dismiss
Thomas DeCola’s complaint because his claims were barred by res judicata but granted him leave to
amend. Mr. DeCola filed an amended complaint. The Starke County Election Board moves once again
to dismiss it. The court grants the motion.
Mr. DeCola’s amended complaint is nearly identical to his previous one. He asserts the same
claims and factual allegations against the same parties. He moves to add additional parties; but, even
if the court granted the motion, each of these parties were in privity or were sued in the state court
proceedings, so this doesn’t get him around the res judicata bar here. See MicroVote Gen. Corp. v. Ind.
Election Commission, 924 N.E.2d 184, 196 (Ind. Ct. App. 2010). For the same reasons in its prior opinion
(ECF 24), the court must dismiss his complaint here because of res judicata.
Mr. DeCola’s amended complaint, construed liberally, may also be interpreted in part as a
motion for reconsideration, as he argues against the court’s prior ruling (ECF 24). See Erickson v. Pardus,
551 U.S. 89, 94 (2007). To the extent his motion is so interpreted, the court denies it. The authorities
he cites—Stevens and Hondo—both say a plaintiff who has exhausted his administrative remedies, as
Mr. DeCola did, can and should join any § 1983 claim with his claim for judicial review of the
administrative decision. See Stevens v. Ind. Dep’t of Pub. Welfare, 566 N.E.2d 544, 547 (Ind. Ct. App.

USDC IN/ND case 3:20-cv-00409-DRL-MGG document 35 filed 01/07/21 page 2 of 2

1991); Hondo, Inc. v. Sterling, 21 F.3d 775, 779 (7th Cir. 1994) (“In fact, res judicata principles would
seem to preclude a § 1983 action which is not brought along with a judicial challenge to an auditor’s
decision.”). That Mr. DeCola filed an emergency injunction here doesn’t change the fact that he should
have brought his § 1983 claim in the original suit.1 He has not shown any manifest error of law or fact
to justify reconsideration or a different ruling.
Further amendment would be futile as evinced by the complaint’s deficiency even after the
court’s warnings. See Runnion v. Girl Scouts of Greater Chi., 786 F.3d 510, 520 (7th Cir. 2015). The court
denies Mr. DeCola any further leave to amend.
Accordingly, the court GRANTS Starke County Election Board’s motion to dismiss for failure
to state a claim (ECF 29), DENIES as MOOT both Thomas DeCola’s motions to join additional
parties (ECF 27) and for oral argument (ECF 32), and DIRECTS the clerk to enter judgment for the
Starke County Election Board. This order terminates the case.
SO ORDERED.
January 7, 2021

s/ Damon R. Leichty
Judge, United States District Court

The court notes for the record that it stated before the “better than negligible” standard in its preliminary
injunction order rather than the new “strong showing” standard (see ECF 9 at 4). See Winter v. Nat. Res. Defense
Council, Inc., 555 U.S. 7, 22 (2008); Ill. Republican Party v. Pritzker, 973 F.3d 760, 762-63 (7th Cir. 2020). This is of
no moment to Mr. DeCola because this higher standard only strengthens the court’s prior decision.

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