Hemingway v. McSpadden et al

Filing 20

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that defendants' motion to dismiss plaintiffs amended complaint [Doc. #14] is DENIED without prejudice.IT IS FURTHER ORDERED that plaintiff shall file a second amended complaint inthis action no later than January 8, 2018. IT IS FURTHER ORDERED that defendants' motion for an extension of time to file their reply brief [Doc. #19] is GRANTED. IT IS FURTHER ORDERED that plaintiffs motion for order to show cause [Doc. #17] is DENIED AS MOOT. IT IS FURTHER ORDERED that plaintiffs request for additional time to pay the initial partial filing fee [Doc. #16] is DENIED AS MOOT as the initial partial filing fee was paid on October 23, 2017. IT IS FURTHER ORDERED that if plaintiff fails to file his second amended complaint by January 8, 2018, then this case will be dismissed without prejudice ( Amended/Supplemental Pleadings due by 1/8/2018.). Signed by District Judge Ronnie L. White on 12/7/17. (MRS)

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION LAMON TANEAL HEMINGWAY, Plaintiff, v. BRANDEN MCSPADDEN, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 1:l7-CV-52 JMB MEMORANDUM AND ORDER Before the Court is defendants' motion to dismiss this action, brought pursuant to Fed.R.Civ.P.12(b)(6). Defendants seek to dismiss plaintiffs complaint for failure to exhaust his administrative remedies. 1 Plaintiff has responded to defendants' motion to dismiss and requests an extension of time to file a second amended complaint. Defendants state that they acquiesce to plaintiffs request to file his second amended complaint; however, defendants wish to preserve their right to file a motion to dismiss the second amended complaint if necessary. 2 In light of the aforementioned, the Court will deny the motion to dismiss and grant plaintiff time to file an amended pleading. The Court will also deny plaintiffs motion for order to show cause in which he asks for stamps and other legal materials. In his motion, plaintiff states that he was released from prison on December 2, 2017. As that time has already passed, his motion will be denied as moot. 3 Accordingly, 1 Defendants further assert that plaintiff should be barred from filing suit for failing to accurately list his pending civil actions on the complaint form. This argument is specious and will be disregarded. 2 Motions that refer to matters outside the pleading are more properly brought pursuant to Federal Rule of Civil Procedure 56. 3 If plaintiffs circumstances have changed, he should notify the Court. IT IS HEREBY ORDERED that defendants' motion to dismiss plaintiffs amended complaint [Doc. #14] is DENIED without prejudice. IT IS FURTHER ORDERED that plaintiff shall file a second amended complaint in this action no later than January 8, 2018. IT IS FURTHER ORDERED that defendants' motion for an extension of time to file their reply brief [Doc. #19] is GRANTED. IT IS FURTHER ORDERED that plaintiffs motion for order to show cause [Doc. #17] is DENIED AS MOOT. IT IS FURTHER ORDERED that plaintiffs request for additional time to pay the initial partial filing fee [Doc. #16] is DENIED AS MOOT as the initial partial filing fee was paid on October 23, 2017. IT IS FURTHER ORDERED that if plaintiff fails to file his second amended complaint by January 8, 2018, then this case will be dismissed without prejudice. Dated this '7!!iay of December, 2017. ~~kfh RONNIE L. WHITE UNITED STATES DISTRICT JUDGE 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?