United States District Court, N.D. Indiana, LaFayette Division
JAMES K. SCHENKE, Plaintiff,
JULIE GRIFFITH - VP Public Affairs, et al., Defendants.
OPINION AND ORDER
P. Rodovich, United States Magistrate Judge
matter is before the court on the Motion for Leave to File
Amended Complaint and for Relation Back to September 10, 2015
[DE 41] filed by the plaintiff, James K. Schenke, on July 3,
2016. For the following reasons, the motion is GRANTED.
September 10, 2015, the plaintiff, James Schenke, filed a
Pro Se Complaint [DE 1] against the defendants,
Julie Griffith, Trent Klingerman, Julie Rosa, Shelley Triol,
Brian Zink, Mitch Daniels (Purdue defendants), John Dennis,
and Randy Truitt. The complaint was served on April 1, 2016.
defendants have moved to dismiss the plaintiff's pro
se complaint. On May 9, 2016, the Purdue defendants
filed a Motion to Dismiss or Strike Complaint [DE 12]. On May
15, 2016, Attorney Jay Meisenhelder entered his appearance on
behalf of the plaintiff and requested an extension of time to
respond to the Purdue defendants' motion to dismiss. In
the motion, Attorney Meisenhelder indicated that since the
defendants had not filed an answer to the plaintiff's
complaint, the plaintiff intended to file an amended
complaint. On June 3, 2016, the defendant, John Dennis, filed
a Motion to Dismiss or Strike Complaint [DE 29]. On June 7,
2016, the defendant, Randy Truitt, filed a Motion to Dismiss
[DE 31], which was superseded by an Amended Motion to Dismiss
[DE 33] on June 8, 2016. The plaintiff was granted multiple
extensions to respond to the motions to dismiss. The
plaintiff filed his Responses [DE 37, 52, 53] in opposition
to the defendants' motion to dismiss. The defendants
filed their Replies [DE 40, 55, 56] on June 28, 2016, July
29, 2016, and August 3, 2016. On July 3, 2016, the plaintiff
filed the Motion for Leave to File Amended Complaint and for
Relation Back to September 10, 2015 [DE 41]. On August 19,
2016, the court dismissed as moot [DE 57] the pending motions
to dismiss filed by the defendants.
plaintiff has conceded in his Consolidated Reply to the
Responses in Opposition to Plaintiff's Motion for Leave
to Amend the Pro Se Complaint by the Purdue Defendants,
Dennis, and Truitt [DE 54] that he cannot sufficiently state
a claim against the defendant, Julie Rosa.
plaintiff in his amended complaint has alleged five counts
pursuant to 42 U.S.C. § 1983. He has alleged a
constitutional violation by the Purdue defendants in count
one, a deprivation of rights under color of state law by the
Purdue defendants in count two, a deprivation of rights under
color of state law by Dennis in count three, a deprivation of
rights under color of state law by Truitt in count four, and
governmental liability by Purdue University in count five.
Rule of Civil Procedure 15(a) provides that a party may amend
the party's pleading only by leave of court or by written
consent of the adverse party and leave shall be freely given
when justice so requires. Because pleadings merely serve to
put the opposing side on notice, they should be freely
amended as the case develops, as long as amendments do not
unfairly surprise or prejudice the opposing party. Rule
15(a); Jackson v. Rockford Housing
Authority, 213 F.3d 389, 390 (7th Cir. 2000). The
decision to deny leave to amend a pleading is an abuse of
discretion only if no reasonable person could agree with the
decision. Winters v. FruBCon, Inc., 498 F.3d 734,
741 (7th Cir. 2007) (quoting Butts v. Aurora Health Care,
Inc., 387 F.3d 921, 925 (7th Cir. 2004)); Ajayi v.
Aramark Business Services, 336 F.3d 520, 530 (7th Cir.
to amend properly may be denied at the district court's
discretion for Aundue delay, bad faith, or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.@ Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962);
Gandhi v. Sitara Capital Management, 721 F.3d 865,
868-869 (7th Cir. 2013).
defendants, collectively, make the argument that the
plaintiff's motion to amend the complaint is futile.
Futility generally is measured by whether the amendment would
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), unless a summary judgment motion is
pending. Peoples v. Sebring Capital Corp., 209
F.R.D. 428, 430 (N.D. Ill. 2002) (quoting Bethany
Pharamacal Company v. QVC, Inc., 241 F.3d 854, 860 (7th
Cir. 2001). An amendment is “futile and should be
denied where the theory pled does not apply to the facts of
the case.” Peoples, 209 F.R.D. at 430. If the
proposed amendment is not clearly futile, denying leave to
amend on this ground would be improper. See Wright
& Miller, 6 Federal Practice & Procedure ' 1487,
at 637-642 (2d ed. 1990) (If the proposed change clearly is
frivolous or advances a claim or defense that is legally
insufficient on its face, the court may deny leave to amend).
12(b)(6) allows for a complaint to be dismissed if it fails
to “state a claim upon which relief can be
granted.” Allegations other than those of fraud and
mistake are governed by the pleading standard outlined in
Federal Rule of Civil Procedure 8(a)(2), which requires a
“short and plain statement” to show that a
pleader is entitled to relief. See Cincinnati Life Ins.
Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). The
Supreme Court clarified its interpretation of the Rule
8(a)(2) pleading standard in a decision issued in May 2009.
While Rule 8(a)(2) does not require the pleading of detailed
allegations, it nevertheless demands something more
“than an un-adorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In order
to survive a Rule 12(b)(6) motion, a complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Cincinnati Life
Ins., 722 F.3d at 946 (“The primary purpose of
[Fed.R.Civ.P. 8 and 10(b)] is to give defendants fair notice
of the claims against them and the grounds supporting the
claims.”) (quoting Stanard v. Nygren, 658 F.3d
792, 797 (7th Cir. 2011)); Peele v. Clifford Burch,
722 F.3d 956, 959 (7th Cir. 2013) (explaining that one
sentence of facts combined with boilerplate language did not
satisfy the requirements of Rule 8); Joren v.
Napolitano, 633 F.3d. 1144, 1146 (7th Cir. 2011). This
pleading standard applies to all civil matters.
Iqbal, 556 U.S. at 684.
decision in Iqbal discussed two principles that
underscored the Rule 8(a)(2) pleading standard announced by
Twombly. See Twombly, 550 U.S. at 555
(discussing Rule 8(a)(2)'s requirement that factual
allegations in a complaint must “raise a right to
relief above the speculative level”). First, a court
must accept as true only factual allegations pled in
a complaint-“[t]hreadbare recitals of the elements of a
cause of action” that amount to “legal
conclusions” are insufficient. Iqbal, 556 U.S.
at 678. Next, only complaints that state
“plausible” claims for relief will survive a
motion to dismiss. Iqbal, 556 U.S. at 678. If the
pleaded facts do not permit the inference of more than a
“mere possibility of misconduct, ” then the
complaint has not met the pleading standard outlined in Rule
8(a)(2). Iqbal, 556 U.S. at 678-79; see Brown v.
JP Morgan Chase Bank, 2009 WL 1761101, at *1 (7th Cir.
June 23, 2009) (defining “facially plausible”
claim as a set of facts that allows for a reasonable
inference of liability). The Supreme Court has suggested a
two-step process for a court to follow when considering a
motion to dismiss. First, any “well-pleaded factual
allegations” should be assumed to be true by the court.
Next, these allegations can be reviewed to determine if they
“plausibly” give rise to a claim that would
entitle the complainant to relief. Iqbal, 556 U.S.
at 678-79; Bonte v. U.S. Bank, N.A., 624 F.3d 461,
465 (7th Cir. 2010). Reasonable inferences from well-pled
facts must be construed in favor of the plaintiff. Murphy
v. Walker, 51 F.3d 714, 717 (7th Cir. 1995); Maxie
v. Wal-Mart Store, 2009 WL 1766686, at *2 (N.D. Ind.
June 19, 2009) (same); Banks v. Montgomery, 2009 WL
1657465, at *1 (N.D. Ind. June 11, 2009) (same).
42 U.S.C. § 1983 provides a “federal cause of
action for the deprivation, under color of [state] law, of a
citizen's rights, privileges, or immunities secured by
the Constitution and laws of the United States....”
Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct.
2068, 2082, 129 L.Ed.2d 93 (1994). Section 1983 does not
itself create substantive rights, but “it acts as an
instrument for vindicating federal rights conferred
elsewhere.” Spiegel v. Rabinovitz, 121 F.3d
251, 254 (7th Cir. 1997). When analyzing a § 1983 claim,
it is necessary to identify the specific constitutional right
that was violated. Spiegel, 121 F.3d at 254. Then,
the validity of the claim must be judged by reference to the
specific constitutional standard that governs the right.
Graham v. Connor,490 U.S. 386, 394 (1989). In order
to state a claim under § 1983, a plaintiff must
sufficiently allege that (1) a person acting under color of