Thomas v. Lombardi et al

Filing 91

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion for leave to file a third amended complaint is GRANTED. (Doc. No. 87) IT IS FUTHER ORDERED that the Clerk of Court shall separate the proposed hird amended complaint that is attached as an exhibit to Plaintiffs motion and docket it as Plaintiffs Third Amended Complaint. IT IS FUTHER ORDERED that Defendants shall have 30 days from the date of this Memorandum and Order to file a supplement to their motion for summary judgment and memorandum in support thereto. Plaintiff shall then have 14 days thereafter to file a response, and Defendants shall have 14 days for any reply. ( Response to Court due by 11/21/2014.). Signed by District Judge Audrey G. Fleissig on 10/22/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL THOMAS,
Plaintiff,
vs.
GEORGE LOMBARDI, et al.,
Defendants.

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Case No. 4:13CV00622 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motion for leave to file a third amended
complaint. Plaintiff, a Missouri inmate, initiated this action pro se on April 1, 2013,
claiming that several prison officials violated his constitutional rights in connection with
his prolonged placement in solitary confinement. The nine Defendants were named in
both their official and individual capacities. By Order dated June 17, 2013, the Court
directed process to issue as to Defendants in their individual capacities, and dismissed
them in their official capacities.
On July 17, 2013, the Court appointed counsel to represent Plaintiff. On
September 12, 2013, counsel filed an amended complaint and then on December 4, 2013, a
second amended complaint, against the nine original Defendants. Neither of these
amended complaints specified in what capacity Defendants were being sued. On January
28, 2014, the Court granted Defendants’ motion to dismiss with respect to several
Defendants, leaving two Defendants in the case, Cheryl Thompson and Ian Wallace.

On September 15, 2014, Defendants filed a motion for summary judgment. They
addressed Plaintiff’s claims against them in their official capacities, correctly noting that
when a complaint fails to state in which capacity a defendant is being sued, the defendant is
only sued in his or her official capacity. See Thomas v. Dorris, No. 1:09-CV-85-SNLJ,
2010 WL 1254625, at *2 (E.D. Mo. Mar. 24, 2010).
On October 6, 2014, Plaintiff filed a response to the motion for summary judgment,
as well as the present motion for leave to file a third amended complaint “to make it clear”
that Thompson and Wallace are being sued in both their official and individual capacities.
Defendants argue that allowing Plaintiff’s proposed Third Amended Complaint would
cause undue prejudice to Defendants and undue delay. Defendants state that if Plaintiff’s
motion for leave is granted, they will seek leave to file a supplemental motion for summary
judgment to raise defenses to the claims against them in their individual capacities.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), courts should grant leave to
amend a pleading “freely . . . when justice so requires.” The Court believes that here,
Plaintiff should be permitted to file the proposed third amended complaint.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion for leave to file a third
amended complaint is GRANTED. (Doc. No. 87)
IT IS FUTHER ORDERED that the Clerk of Court shall separate the proposed
third amended complaint that is attached as an exhibit to Plaintiff’s motion and docket it as
Plaintiff’s Third Amended Complaint.

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IT IS FUTHER ORDERED that Defendants shall have 30 days from the date of
this Memorandum and Order to file a supplement to their motion for summary judgment
and memorandum in support thereto. Plaintiff shall then have 14 days thereafter to file a
response, and Defendants shall have 14 days for any reply.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of October, 2014.

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