United States District Court, N.D. Indiana, Hammond Division
Plaintiff Maurice Brown, pro se
OPINION AND ORDER
MAGISTRATE JUDGE PAUL R. CHERRY, UNITED STATES DISTRICT COURT
matter is before the Court on Defendant, John Buncich's,
Motion to Dismiss Plaintiff's Amended Complaint [DE 37],
filed by Defendant John Buncich on May 26, 2016. Plaintiff,
pro se, has not filed a response, and the deadline by which
to do so has passed.
September 15, 2014, Plaintiff Maurice Brown initiated this
cause of action by filing a Complaint, in which he names
Sheriff Buncich, Lieutenant Douglas, and unknown officers
under Sheriff Buncich as Defendants. Buncich filed his Answer
on November 24, 2014. Douglas filed his Answer on January 6,
8, 2015, Brown filed an emergency motion which was construed
as a motion for a temporary restraining order to prevent
Defendants from evicting Brown from his home. This Court
denied that motion. Brown then filed an Amended Complaint on
August 11, 2015, without seeking this Court's leave or
Defendants' consent. In the caption of his Amended
Complaint, Brown names Buncich as Defendant but does not name
Douglas or the unknown officers in the caption. Buncich filed
an Answer on August 28, 2015. On May 26, 2016, Buncich filed
the instant Motion to Dismiss.
alleges that officers used unnecessary force when evicting
Brown from his home, leading to three days of
hospitalization. Brown also alleges that, in a separate
incident, Douglas coerced Brown out of the Sheriff's
office. Brown alleges that Buncich directed his officers'
actions. Brown contends that these actions by Buncich and his
officers violated Brown's constitutional rights and that
the force used was “unnecessary.” Brown further
alleges that Buncich's actions were taken because of
Brown's race and disabilities.
parties orally agreed on the record to have this case
assigned to a United States Magistrate Judge to conduct all
further proceedings and to order the entry of a final
judgment in this case. Therefore, this Court has jurisdiction
to decide this case pursuant to 28 U.S.C. § 636(c).
ruling on the pending Motion to Dismiss, the Court must first
address Brown's Amended Complaint, which was not filed in
compliance with the Federal Rules of Civil Procedure. For the
reasons stated below, the Court construes the Amended
Complaint as a motion for leave to file an amended complaint
and grants that motion. After resolving that issue, the Court
then turns to the Motion to Dismiss.
litigants are held to a less stringent standard than licensed
attorneys, and their filings are liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However,
“pro se litigants are not entitled to a general
dispensation from the rules of procedure or court-imposed
deadlines.” Downs v. Westphal, 78 F.3d 1252,
1257 (7th Cir. 1996) (quoting Jones v. Phipps, 39
F.3d 158, 163 (7th Cir. 1994)). Still, a court can exercise
its discretion and accept a pro se litigant's amended
complaint that was not filed in compliance with Rule 15 by
construing it as a motion to amend the complaint and then
granting the construed motion. See, e.g., Green
v. United States, 2:14-cv-119, 2015 WL 5093753, at *1
(S.D. Ill. Aug. 27, 2015); Marshall v. Nickel,
06-cv-617, 2008 WL 2610142, at *1 (W.D. Wis. July 2, 2008).
instant matter, Plaintiff submitted an Amended Complaint more
than 21 days after Defendants had submitted Answers to the
original complaint and without first seeking Defendants'
consent or this Court's leave. Thus, the Amended
Complaint was not filed in compliance with Rule 15. However,
none of the defendants named in the original complaint
objected to Plaintiff's Amended Complaint. Additionally,
Buncich filed an Answer and, later, the instant Motion to
Dismiss, directed toward the Amended Complaint, thereby
tacitly accepting the Amended Complaint as the controlling
complaint in this litigation. In the interests of justice,
this Court construes the Amended Complaint as a motion for
leave to file an amended complaint, and grants the motion.
The Amended Complaint, filed at docket entry 31, is the
controlling complaint in this cause of action.
per Federal Rule of Civil Procedure 10, all parties must be
named in a complaint's caption. Fed.R.Civ.P. 10. Parties
can be dropped from a cause of action through the filing of
an amended complaint that does not name the dropped party.
Taylor v. Brown, 787 F.3d 851, 858 (7th Cir. 2015).
The caption of the Amended Complaint lists only Buncich as a
defendant. Therefore, ...