Jabary v. City of Allen

Filing 100

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE DENYING AS MOOT 86 Motion to Dismiss filed by Stephen Terrell, Jon Felty, Bo Bass, Bret McCullough, Pete Vargas, Peter Smith, William S Rushing, DENYING 83 Motion for Sanctions, filed by Mike Jabary, 79 Report and Recommendations, GRANTING IN PART AND THE CASE IS STAYED FOR 60 DAYS 48 Motion to Dismiss filed by City of Allen, GRANTING 49 Motion to Dismiss filed by Stephen Terrell, Jon Felty, Bo Bass, Pe ter Smith, 78 Report and Recommendations, GRANTING 66 Motion to Dismiss filed by Bret McCullough, Pete Vargas, William S Rushing, DENYING AS MOOT 85 Motion to Dismiss filed by City of Allen. It is further ORDERED that Planitff and Defendant City of Allen shall file a Status Report on or before 5/4/2012. Signed by Judge Michael H. Schneider on 2/29/2012. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERM AN DIVISION

MIKE JABARY

V.
CITY OF ALLEN, ET AL.

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CASE NO. 4:10-CV-711
Judge Schneider/Judge Mazzant

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On January 27, 2012, the reports of the Magistrate Judge were entered containing proposed
findings of fact and recommendations as follows:
C

Defendants Peter Smith, Stephen Terrell, Bo Bass, and Jon Felty’s Second Motion to
Dismiss for Failure to State a Claim (Dkt. No. 49) and Defendants Peter Vargas, Bret
McCullough and William Rushing’s Motion to Dismiss for Failure to State a Claim (Dkt.
No. 66) be granted (Report and Recommendation Dkt. No. 78);

C

Defendant City of Allen’s Motion to Dismiss Second Amended Complaint Pursuant to Fed.
R. Civ. P. 12(b)(6) (Dkt. No. 48) be granted in part (Report and Recommendation Dkt. No.
79).
The Court has made a de novo review of Plaintiff’s objections and Defendants’ response to

Plaintiff’s objections, and is of the opinion that the findings and conclusions of the Magistrate Judge
are correct, and the objections are without merit.
On December 28, 2010, Plaintiff pro se filed a Complaint against Defendants. On January
19, 2011, the Court granted Plaintiff’s request to proceed in forma pauperis and denied his request
for counsel (Dkt. No. 7). On May 13, 2011, Plaintiff, now with counsel, filed his Amended
Complaint (Dkt. No. 9). On July 1, 2011, Defendant The City of Allen (the “City”) filed a motion

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to dismiss (Dkt. No. 17), and Defendants Peter Smith, Stephen Terrell, Bo Bass, and Jon Felty filed
a Motion to Dismiss for Failure to State a Claim and Alternative Request for Rule 7(a) Reply to
Immunity Defenses (Dkt. No. 18). On August 10, 2011, the Court ordered Plaintiff to file a Rule 7(a)
Reply (Dkt. No. 36). On August 24, 2011, Plaintiff, without seeking leave of Court, filed his Second
Amended Complaint and Rule 7A Reply (Dkt. No. 37). On October 4, 2011, Defendant City of
Allen filed a motion to dismiss the second amended complaint (Dkt. No. 48). On October 18, 2011,
Plaintiff filed a response (Dkt. No. 63). On October 31, 2011, the Defendant filed a reply (Dkt. No.
65). On October 4, 2011, Peter Smith, Stephen Terrell, Bo Bass, and Jon Felty filed a motion to
dismiss (Dkt. No. 49). On October 18, 2011, Plaintiff filed a response (Dkt. No. 63). On October
31, 2011, the Defendants filed a reply (Dkt. No. 65). On November 14, 2011, Defendants Peter
Vargas, Bret McCullough and William Rushing filed a motion to dismiss (Dkt. No. 66). Plaintiff did
not file a response to the motion.
On January 19, 2012, Plaintiff filed, without seeking leave of Court and after Defendants
filed their motion to dismiss, his Third Amended Complaint (Dkt. No. 77). On February 3, 2012,
Defendants Peter Smith, Stephen Terrell, Bo Bass, Jon Felty, Peter Vargas, Bret McCullough, and
William Rushing filed a Motion to Dismiss for Failure to State a Claim (Dkt. No. 86). Also on
February 3, 2012, the City filed a motion to dismiss (Dkt. No. 85). On February 8, 2012, Plaintiff
filed a response to Defendants’ motions (Dkt. No. 88).
Plaintiff did not ask for leave to file his Third Amended Complaint. Plaintiff takes the
position that the deadline to add parties and file amended pleadings gives him an unlimited right to
file new pleadings and add new parties. This assumption is incorrect, and Plaintiff must look to
Federal Rule of Civil Procedure 15. The Scheduling Order must be read in conjunction with the
Federal Rules of Civil Procedure. Because Defendants have already filed responsive pleadings
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before Plaintiff filed his Third Amended Complaint, Rule 15(a)(2) applies. Fed. R. Civ. P. 15(a)(2).
Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing party's written
consent or the court's leave.” Defendants did not give consent, and Plaintiff did not ask for leave.
Therefore, Plaintiff’s Third Amended Complaint (Dkt. No. 77) is hereby STRICKEN.
However, even if Plaintiff had asked for leave, the Court would have denied the request. The
decision whether to grant a motion to amend is within the court's discretion. Jacobsen v. Osborne,
133 F.3d 315, 318 (5th Cir. 1998). The Court is guided by the limitation in Rule 15(a)(2), which
states that “leave shall be freely given when justice so requires.” Jacobsen, 133 F.3d at 318. The
factors which the court may consider include undue delay, bad faith or dilatory motive, repeated
failure to correct deficiencies through previous amendments, undue prejudice to the nonmoving
party, and futility of the amendment. Id. (quoting In re Southmark Corp., 88 F.3d 311, 314–15 (5th
Cir. 1996)). If the amended pleading will be subject to dismissal, the court may consider the
amendment to be futile and deny leave to amend. Fed. Deposit Ins. Corp. v. Conner, 20 F.3d 1376,
1385 (5th Cir. 1994). The court may deny motions to amend, even when such amendment would
be “as a matter of course,” when the amendment would be futile. Johnson v. Dunbar, No. 92-09536,
1994 WL 35605, at *4 (5th Cir. Jan. 27, 1994). A review of the Third Amended Complaint, as well
as the new motions to dismiss, leads the Court to the conclusion that this amendment would be futile
and does not correct the deficiencies of the prior complaints.
Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge as
the findings and conclusions of this Court.
It is, therefore, ORDERED that Defendants Peter Smith, Stephen Terrell, Bo Bass, and Jon
Felty’s Second Motion to Dismiss for Failure to State a Claim (Dkt. No. 49) and Defendants Peter
Vargas, Bret McCullough and William Rushing’s Motion to Dismiss for Failure to State a Claim
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(Dkt. No. 66) are GRANTED. Defendants Peter Smith, Stephen Terrell, Bo Bass, Jon Felty, Peter
Vargas, Bret McCullough, William Rushing and John Does 1-5 are DISMISSED with prejudice.
It is further ORDERED that Defendant City of Allen’s Motion to Dismiss Second Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 48) is GRANTED in part and the case is
STAYED sixty (60) days from the entry of this Memorandum to allow Plaintiff to exhaust his state
remedies. The stay only applies to the Plaintiff’s claims against the City.
It is further ORDERED that City of Allen’s Motion & Brief to Dismiss Third Amended
Complaint (Dkt. No. 85) is DENIED as moot.
It is further ORDERED that Defendants Peter Smith, Stephen Terrell, Bo Bass, Jon Felty
Peter Vargas, Bret McCullough and William Rushing’s Motion & Brief to Dismiss for Failure to
State a Claim (Dkt. No. 86) is DENIED as moot.
.
It is further ORDERED that Plaintiff’s Motion for Sanctions and Memorandum in Support
of Motion for Rule 11 Sanctions (Dkt. No. 83) is DENIED.
It is further ORDERED that Plaintiff and Defendant City of Allen shall file a Status Report
on or before May 4, 2012.
It is SO ORDERED.
SIGNED this 29th day of February, 2012.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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