Williams v. University of Texas Police Department

          MEMORANDUM OPINION

          Nancy K. Johnson United States Magistrate Judge

         Pending before the court^[1] are Defendant's Motion to Dismiss (Doc. 5), Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 14), and Defendant's Motion to Strike Plaintiff's Amended Complaint (Doc. 15). The court has considered the motions, the responses, all other relevant filings, and the applicable law. For the reasons set forth below, the court GRANTS Defendant's motion to strike and motion to dismiss and DENIES AS MOOT Defendant's motion to dismiss Plaintiff's amended complaint.

         I. Case Background

         Plaintiff filed this lawsuit on October 9, 2018, against Defendant University of Texas Police Department, purportedly pursuant to 42 U.S.C. § 1983 (“Section 1983").^[2] In her complaint, Plaintiff alleged the following against Defendant: “The above listed defendants wrongfully arrested the plaintiff with no probable cause, sexually assaulted/assaulted [plaintiff] and intentionally falsif[ied] information into plaintiff[‘s] record, invoking [a] prior arrest to gain a conviction. Also, plaintiff alleges unreasonable search and seizure.”^[3]

         On October 30, 2018, Defendant filed its pending motion to dismiss.^[4] On December 13, 2018, Plaintiff filed an amended complaint without the leave of the court or agreement of Defendant.^[5] Plaintiff's amended complaint copied her original complaint with an additional cover sheet that listed the Defendants as: “UNIVERSITY OF TEXAS POLICE DEPARTMENT et al[., ] Officer Brandon Hazelric[, ] Officer Murphy[, ] Officer Jones[, ] Officer Ortiz[, and] Sergeant on Duty[.]”^[6] From the record, it appears that none of the individual officers added in the amended complaint have been served or have appeared in this lawsuit.

         On December 21, 2018, Defendant filed a motion to strike Plaintiff's amended complaint and a second motion to dismiss.^[7] On February 19, 2019, Plaintiff filed a response to Defendant's motion to dismiss.^[8] However, Plaintiff's response appears to be responsive to a motion to dismiss in a different case that Plaintiff filed against the University of Houston Police Department and other University of Houston entities.^[9] The court contacted Plaintiff to alert her that the incorrect response was docketed in this case. Plaintiff informed the court that it was the correct response. Accordingly, the court will consider the response to the extent that it is responsive to Defendant's arguments.

         II. Motion to Strike

          Defendant argues that Plaintiff's amended complaint should be struck because it does not comply with Federal Rule of Civil Procedure (“Rule”) 15. Under Rule 15:

A party may amend its pleading once as a matter of course within . . . 21 days after serving it, or . . . if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

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).

         Plaintiff's amended complaint was filed more than twenty-one days after Defendant's first motion to dismiss. Defendant did not consent to Plaintiff's filing an amended complaint and the court never gave Plaintiff leave to amend her complaint. Notably, Plaintiff has not sought the court's leave since Defendant filed its motion to strike and did not file a response to the motion to strike. Finally, there is no evidence in the record that any of the named police officers added in the amended complaint have been served.

         For these reasons, Defendant's motion to strike is GRANTED.

         III. Motion to Dismiss

         Defendant argues that Plaintiff's lawsuit should be dismissed because it is ...