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Smith v. Sears

March 26, 2007

EDWARD SMITH, PLAINTIFF,
v.
JOHN SEARS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: District Judge Susan J. Dlott

Order Striking Counts II, III, and V of Plaintiff's Amended Complaint and Dismissing Defendant Hill

This matter is before the Court on Defendants' Memorandum in Opposition to Plaintiff's Filing of Second Amended Complaint (Especially the Addition of Counts II, III, and V and of Defendants Back, Hill, and Keesler) (doc. 104) and Plaintiff's Position Paper in Response to Defendants' Objections (doc. 109). The Court construes Defendants' Memorandum as a motion to strike Counts II, III, and V and to dismiss Defendants Back, Hill, and Keesler from the Amended Complaint filed on January 23, 2007. For the following reasons, the Court GRANTS in part and DENIES in part Defendants' motion.

The factual background of this case was set forth in this Court's Order Granting in Part Plaintiff's Motion to Amend Complaint and Granting Plaintiff's Motion to Set Aside Judgment in Part (doc. 95) and will not be restated. In that Order, the Court granted Plaintiff's motion to amend his complaint to the extent that it sought to add a claim for relief under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc et seq. ("RLUIPA") and to add the Director of the Ohio Department of Rehabilitation and Correction ("ODRC") as a defendant. The Court additionally granted Plaintiff's Motion to Set Aside Judgment in Part, which had the effect of reinstating Plaintiff's claim under 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment right to be free from excessive force. The effect of the Order was to permit Plaintiff to pursue three claims: his First Amendment claim, which remained from his original complaint; his Eighth Amendment claim, reinstated from his original complaint; and a claim under the RLUIPA.

Subsequent to this Court's Order, and pursuant to that Order, Plaintiff filed an Amended Complaint. (Doc. 98.) However, rather than asserting the three claims permitted, the Amended Complaint went further, listing six counts: Count I. Denial of Free Exercise of Religion in violation of Section 1983 [asserting rights secured by the First Amendment]; Count II. Retaliation in Violation of Section 1983 [asserting rights secured by the First Amendment]; Count III. Equal Protection; Count IV. Violation of [RLUIPA]; Count V. Retaliation in Violation of [RLUIPA]; and Count VI. Violation of Civil Rights Pursuant to Section 1983 [asserting rights secured by the Eighth Amendment]. In so doing, Plaintiff overstepped the parameters set forth by the Court in its Order granting the motion for leave to amend.

This Court, and Defendants' counsel, have spent innumerable hours contemplating and analyzing the facts and claims alleged in this lawsuit, filed in 2003. While the Court found it appropriate to permit Plaintiff, who had largely proceeded pro se in the action, to pursue his Eighth Amendment claim and a claim under the RLUIPA, it did not give him free reign to plead additional claims at this very late stage in the litigation, namely, after a ruling on Defendants' motion for summary judgment and just weeks before the previously scheduled trial date. The Court did not grant Plaintiff leave to add an equal protection claim. Thus, the Court strikes that claim, enumerated as Count III, from the Amended Complaint. Furthermore, the Court has already disallowed any claim of retaliation in this case by means of the July 11, 2005 Report and Recommendation of Magistrate Judge Hogan. (Doc. 59.) In that R&R, Magistrate Hogan stated:

To the extent plaintiff now attempts to raise retaliation claims under the First Amendment (Doc. 56 at 7-9), he is barred from so doing. He has failed to show he exhausted any alleged retaliation claims prior to filing this lawsuit, see 42 U.S.C. § 1997e(a), and, in any event, his conclusory assertions do not show a sufficient causal nexus between his complaints concerning prisoner mail and the forced cutting of his beard and placement in general population segregation. (Doc. 59 at 3 n. 1.)*fn1 The Court has already considered and rejected the propriety of allowing Plaintiff to raise a claim of retaliation based on the facts alleged, whether stemming from an alleged violation of the First Amendment or of the RLUIPA. The Court therefore strikes the newly added retaliation claims, enumerated as Counts II and V, from the Amended Complaint.

Defendants also object to Plaintiff's attempted addition of three defendants to this action: Adam Keesler, Jason Back, and Dale Hill. According to Plaintiff, these individuals are being added because they relate to his excessive force claim, which has been reinstated. (Doc. 109 at 4.) Defendants counter, arguing that these defendants "are prejudiced by being brought into the lawsuit four years after its inception and even further from the events complained of." (Doc. 104 at 10.)

Defendants' argument in opposition to the naming of these additional defendants does not accurately recall the litigation history. In fact, both Adam Keesler and Jason Back were named as defendants on the Complaint filed on March 17, 2003.*fn2 Additionally, Magistrate Hogan listed both Keesler and Back as "remaining defendants" in the July 11, 2005 R&R. (Doc. 59 at 1.) They were dismissed when the Court granted summary judgment to Defendants on the Eighth Amendment claim. (Doc. 65.) In short, Defendants Keesler and Back are not being brought into the lawsuit for the first time. Because the Court has reinstated the Eighth Amendment claim, these individuals are again proper defendants.*fn3 On the other hand, the Court cannot locate any prior reference to Dale Hill in the pleadings and, thus, will not allow Plaintiff to pursue an action against him at this late date.

For the foregoing reasons, the Court GRANTS Defendants' motion to strike Counts II, III, and V from the Amended Complaint (doc. 98). Additionally, the Court GRANTS Defendants' motion to dismiss Defendant Hill from the Amended Complaint but DENIES the motion to dismiss Defendants Keesler and Back. Pursuant to the Order of February 28, 2007 (doc. 113), Defendants have 60 days to complete depositions in this matter.

IT IS SO ORDERED.

Susan J. Dlott United States ...


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