United States District Court, S.D. Texas, Houston Division
YOLANDA M. WILLIAMS, Plaintiff,
v.
UNIVERSITY OF TEXAS POLICE DEPARTMENT, et al., Defendants.
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 ...