Matthews v. Dayton Police Department et al

Filing 33

ORDER AND ENTRY: (1) GRANTING, NUNC PRO TUNC, PRO SE PLAINTIFFS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 10); (2) DEEMING THIS CASE PROPERLY BEFORE THE COURT ON PRO SE PLAINTIFFS AMENDED COMPLAINT (DOC. 14); (3) STAYING THE PARTIES RULE 26 (f) CONFERENCE AND THE ISSUANCE OF A SCHEDULING ORDER PENDING DISPOSITION OF DEFENDANT SANDYS TOWING SERVICES MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 17); (4) DENYING DEFENDANTS MOTION TO STRIKE (DOC. 28); (5) PERMITTING THE FILING OF PLAINTIFFS S URREPLY AND DEFENDANTS SUR-SURREPLY (DOCS. 26, 28); AND (6) DENYING PRO SE PLAINTIFFS MOTION TO COMPEL (DOC. 29) Signed by Magistrate Judge Michael J. Newman on 7/16/2018. (dm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANTHONY MATTHEWS,
Plaintiff,

Case No. 3:18-cv-26

vs.
DAYTON POLICE DEPARTMENT, et al.,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
ORDER AND ENTRY: (1) GRANTING, NUNC PRO TUNC, PRO SE PLAINTIFF’S
MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 10); (2)
DEEMING THIS CASE PROPERLY BEFORE THE COURT ON PRO SE PLAINTIFF’S
AMENDED COMPLAINT (DOC. 14); (3) STAYING THE PARTIES’ RULE 26(f)
CONFERENCE AND THE ISSUANCE OF A SCHEDULING ORDER PENDING
DISPOSITION OF DEFENDANT SANDY’S TOWING SERVICE’S MOTION FOR
JUDGMENT ON THE PLEADINGS (DOC. 17); (4) DENYING DEFENDANT’S
MOTION TO STRIKE (DOC. 28); (5) PERMITTING THE FILING OF PLAINTIFF’S
SURREPLY AND DEFENDANT’S SUR-SURREPLY (DOCS. 26, 28); AND (6) DENYING
PRO SE PLAINTIFF’S MOTION TO COMPEL (DOC. 29)
______________________________________________________________________________
This is a civil case in which pro se Plaintiff asserts claims under 42 U.S.C. § 1983. Pro se
Plaintiff filed his original complaint in this case on January 24, 2018. Doc. 1. On April 11, 2018,
Plaintiff moved for leave to amend his complaint. Doc. 10. While his motion for leave remained
pending for the Court’s consideration, pro se Plaintiff filed his amended pleading. Doc. 14.
Although the amended complaint was thus improperly filed without leave of Court first being
granted, Defendants nevertheless filed answers directed to the amended complaint. Docs. 15, 16.
There being no prejudice to Defendants, and in the interests of justice, pro se Plaintiff’s motion
for leave (doc. 10) is GRANTED nunc pro tunc. Accordingly, this case is now properly before
the Court on pro se Plaintiff’s amended complaint (doc. 14).
Shortly after pro se Plaintiff filed his amended complaint, Defendant Sandy’s Towing
Service (“Sandy’s”) filed a motion for judgment on the pleadings addressed to both the original

and amended complaint. Doc. 17. Pro se Plaintiff filed a memorandum in opposition to Sandy’s
motion (doc. 21) and, subsequently, Sandy’s filed a reply memorandum (doc. 25). Pro se Plaintiff,
without having been granted leave, improperly filed a surreply to Sandy’s reply and, as a result,
Sandy’s moved to either strike Plaintiff’s response or, alternatively, to permit it leave to submit a
sur-surreply. Doc. 28. In the interests of justice, the Court PERMITS pro se Plaintiff’s filing of
a surreply (doc. 26), DENIES Sandy’s motion to strike and, instead, GRANTS Sandy’s request
for leave to submit its sur-surreply (doc. 28) -- which the Court deems filed as of June 13, 2018.
Sandy’s motion for judgment on the pleadings will be addressed by the undersigned in a
separately filed Report and Recommendation. Because Sandy’s motion for judgment on the
pleadings remains pending, the Court finds good cause exists to STAY the required Rule 26(f)
conference between the parties and, further, to STAY issuance of a scheduling order. Such stay
will be lifted upon final disposition of Sandy’s motion for judgment on the pleadings.
Finally, pro se Plaintiff has filed a motion to compel discovery (doc. 29), which Defendants
oppose (docs. 30, 31). Because discovery has not yet commenced in this case, see Fed. R. Civ. P.
26(d)(1), pro se Plaintiff’s motion to compel (doc. 29) is DENIED.
IT IS SO ORDERED.

Date:

July 16, 2018

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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