Stanko v. Brewer
| Decision Date | 08 October 2020 |
| Docket Number | 8:20CV302 |
| Parties | RUDY STANKO; Plaintiff, v. JEFF BREWER, individually; Defendant. |
| Court | U.S. District Court — District of Nebraska |
This case is before the court on the Motion to Dismiss (Filing 4) and the Motion to Strike the Second Amended Complaint (Filing 16) filed by Defendant Jeff Brewer ("Defendant" or "Brewer"). For the reasons outlined below, the motion to strike will be granted, and the motion to dismiss will be granted, with prejudice.
BACKGROUND
On June 24, 2020, pro se Plaintiff Rudy Stanko ("Plaintiff") filed a complaint against Defendant in the District Court of Sheridan County, Nebraska. He amended his complaint on or about June 29, 2020. The amended complaint alleges Defendant interfered with Plaintiff's access to counsel and the courts and subjected Plaintiff to unconstitutional conditions of confinement.
Defendant was served, and prior to filing any responsive pleadings, he timely filed a notice to remove this action to federal court. (Filing 1); see also 28 U.S.C. § 1446(b). In his removal notice, Defendant argued Plaintiff's complaint raised a federal question and that this court has original jurisdiction pursuant to 28 U.S.C. §1331. (Filing 1 at CM/ECF p. 2).
Plaintiff objected. (Filings 7 and 9). Plaintiff claimed that removal to federal court is inconvenient because there are no federal courthouses in the area of western Nebraska where he resides (or claims to reside). (Filing 7 at CM/ECF p. 1). He additionally argued that the Nebraska state court had jurisdiction over his claims and removal was therefore inappropriate. (Filing 9).
The Magistrate Judge evaluated the jurisdictional issue, found this court has subject matter jurisdiction, and overruled Plaintiff's objections to the assigned trial location. (Filing 11). The undersigned agreed, the Magistrate Judge's Findings and Recommendation were adopted in their entirety, and Plaintiff's motion to remand was denied. (Filing 18).
During the course of the parties' jurisdictional and trial location dispute, Defendant moved to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Filing 4). The parties briefed the motion, and it was fully submitted on August 24, 2020. Thereafter, on September 4, 2020, Plaintiff filed a second amended complaint without leave of the court or Defendant's consent. (Filing 14). Defendant moved to strike the second amended complaint. (Filing 16). Defendant's motions are now fully submitted.
DISCUSSION
If Defendant's motion to strike is denied and the second amended complaint becomes the operative pleading, the motion to dismiss the first amended complaint will be moot. The court will therefore initially address Defendant's motion to strike and then address the motion to dismiss.
Defendant moves to strike Plaintiff's second amended complaint on both procedural and substantive grounds. (Filing 16). Defendant argues Plaintiff violated Fed. R. Civ. P. 15(a)(2) by filing the second amended complaint without leave of the court or Defendant's consent. Defendant further argues Plaintiff's second amended complaint would vastly expand the scope of this litigation by purporting to bebrought by Plaintiff on his own behalf and on behalf of similarly situated prisoners in the Sheridan County Jail. (Filing 14). Defendant alleges Plaintiff, a nonlawyer, cannot represent others and the second amended complaint must therefore be stricken as futile. (Filing 16).
Pursuant to Fed. R. Civ P. 15(a)(1), a party may amend a pleading once as matter of course. Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). The court should give leave freely, when justice so requires. Id. Here, Plaintiff first amended complaint was filed in state court before the case was removed to this forum. Thus, while plaintiff has amended once before, his second amended complaint is the first amendment filed in federal court.
In removed actions, the federal rules treat the parties' actions taken in state court as if they had occurred in the federal forum. Suarez v. GEO Grp., Inc., 2015 WL 13121263, at *1 (S.D. Tex. May 18, 2015). Pleading amendments are no exception, and previous amendments in state court proceedings extinguish a party's right to amend as of right after removal. See Guthrie v. Wells Fargo Home Mortg. NA, 2014 WL 3749305, at *3 n.1 (N.D. Ga. July 28, 2014) (); Wright v. Chase Home Fin. LLC, 2011 WL 2173906, at *3 (D. Ariz. June 2, 2011) (); Manzano v. Metlife Bank N.A., 2011 WL 2080249, at *3 (E.D. Cal. May 25, 2011) ().
Plaintiff filed his first amended complaint in state court on June 29, 2020. The complaint he filed on September 4, 2020 is therefore a second amended complaint - filed without leave of court or Defendant's consent. As a result, it is procedurally improper and properly stricken for failure to comply with the Federal Rules of Civil Procedure.
Even if the Plaintiff had requested leave to file his second amended complaint pursuant to Fed. R. Civ. P. 15(a)(2), that request would have been denied as futile. The right to amend a complaint is not absolute or without limits. See Sherman v. Winco Fireworks Inc., 532 F.3d 709 (8th Cir. 2008).
A district court can refuse to grant leave to amend a pleading only where it will result in undue 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, [or] futility of the amendment.
Dennis v. Dillard Dept. Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000) (internal citations omitted) (quoting Foman v. Davis, 371 U.S. 178 (1962)). The decision on whether to allow a party to amend its complaint is left to the "sound discretion of the district court." Popoalii v. Correctional Medical Services, 512 F.3d 488 at 497 (8th Cir. 2008). "A court may deny a motion for leave to amend for futility if the proposed amendments would not save the party's claim from dismissal." Mawhiney v. Warren Distribution, Inc., 2007 WL 188713, at *2 (D. Neb. Jan. 22, 2007).
Here, the new claims raised in the second amended complaint, which Plaintiff stylizes as a class action, are improper on their face. "Every court that has considered the issue has held that a prisoner proceeding pro se is inadequate to represent the interests of his fellow inmates in a class action." Coleman v. Newton, 2009 WL 1936265, at *1 (D. Neb. June 29, 2009) (quoting Craig v. Cohn, 80 F.Supp.2d 944,946 (N.D.Ind.2000)). Pro se litigants, including inmates, are not permitted to represent other parties in class action proceedings. Id.
Moreover, while Plaintiff's complaint offers a handful of new factual allegations, it does not address or rectify the constitutional shortcomings of the first amended complaint. The second amended complaint must be stricken on the merits for failure to state a claim for recovery on behalf of a class and because it does not address any of the fatal defects (discussed below) that support dismissal of the first amended complaint. Mississippi River Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1018 (8th Cir. 2003).
Since the second amended complaint will be stricken, Plaintiff's first amended complaint remains the operative pleading. Defendant has moved to dismiss that pleading, arguing: 1) Plaintiff's claims are moot; 2) Defendant is entitled to qualified immunity; and 3) Plaintiff failed to exhaust his administrative remedies. (Filing 6 at CM/ECF p. 2-6).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, the factual allegations in a complaint "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must be dismissed if it does not plead "enough facts to state a claim for relief that is plausible on its face." Id. at 570.
For the purposes of a motion to dismiss, the court must "assume that well-pleaded factual allegations in the complaint are true and construe the complaint, and all reasonable inferences arising therefrom, most favorably to the pleader." Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) (internal quotation marksomitted). Where, as in this case, the plaintiff appears pro se, the "complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014) (internal quotation marks and citations omitted). But the complaint must nonetheless state a claim. The court will not "blindly accept the legal conclusions drawn by the pleader from the facts." Id. "When the allegations in a complaint, however true, could not raise a claim of entitlement to relief, the complaint should be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6)." Hawkins Constr. Co. v. Peterson Contractors, Inc., 970 F. Supp. 2d 945, 949 (D. Neb. 2013).
A complaint need not include detailed factual allegations, but "a plaintiff's obligation to provide the grounds of his entitlement to relief...
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