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Newman v. Marshall University Police Department

United States District Court, S.D. West Virginia, Huntington Division

July 22, 2019

KATINA VON NEWMAN, Plaintiff,
v.
MARSHALL UNIVERSITY POLICE DEPARTMENT, THE CITY OF HUNTINGTON, AND THE HUNTINGTON POLICE DEPARTMENT, Defendants.

          ORDER

          Omar J. Aboulhosn United States Magistrate Judge.

         Pending before the Court are Defendants, The City of Huntington and the Huntington Police Department's Motion to Strike Plaintiff's Amended Complaint Filed on January 30, 2019 (ECF No. 6) and Defendant Marshall University Police Department's Motion to Strike Plaintiff's Amended Complaint Filed on March 13, 2019 (ECF No. 21) Having examined the Complaint (ECF No. 2) and the “amended” Complaint (ECF No. 18) as well as other filings submitted by Plaintiff, as well as pertinent legal authority, the undersigned concludes that Defendants' Motions should be DENIED.

         Procedural History[1]

         Defendants City of Huntington and the Huntington Police Department filed their Notice of Removal along with an attachment of the civil action filed in the Circuit Court of Cabell County, West Virginia on January 29, 2019. (ECF Nos. 1, 1-1) That same day, Defendants filed their Answer. (ECF No. 3) On February 21, 2019, Defendants filed their Motion to Strike (ECF No. 6) asserting that Plaintiff filed an amended complaint in the Circuit Court of Cabell County the day after Defendants filed their Answer and Notice of Removal herein. By Order entered on February 22, 2019, this Court issued a Roseboro notice to Plaintiff advising of her right to respond to Defendants' Motion. (ECF No. 7) On March 7, 2019, Plaintiff filed her “Response in Opposition to Defendants Motion to Strike Plaintiffs Amended Complaint”. (ECF No. 13)[2] On March 13, 2019, Plaintiff filed her “Amended Complaint”. (ECF No. 18)[3]

         On March 28, 2019, Defendant Marshall University Police Department filed its Motion to Strike (ECF No. 21). That same day, this Court issued Plaintiff another Roseboro notice advising her of her right to file a response. (ECF No. 22) Plaintiff did not file a response to Defendant Marshall University Police Department's Motion.[4] However, on April 17, 2019, Plaintiff filed what has been docketed as “Additional Documentation”. (ECF No. 29)[5]

         Arguments in Favor of Striking Amended Complaint(s)

         Defendants City of Huntington and the Huntington Police Department assert that Plaintiff filed an amended complaint in the Circuit Court of Cabell County the day after these Defendants filed their notice of removal and answer. These Defendants contend that Plaintiff's amended complaint was filed without leave of court or with their consent pursuant to Rule 15 of the Federal Rules of Civil Procedure. (ECF No. 6) In response, Plaintiff asserts that she filed the amended complaint on January 29, 2019, but the state court clerk date stamped it for January 30, 2019. (ECF No. 13) However, Plaintiff states that the “only thing in Amendment different from original lawsuit is mis-spelled words corrected and Plaintiff changed to Defendant and the mistake of putting 8thSt instead of 10th St where the Marathon Gas station is located.” (Id.)

         On March 28, 2019 Defendant Marshall University Police Department filed a Motion to Strike Plaintiff's Amended Complaint (ECF No. 21) that she filed with this Court on March 13, 2019 (ECF No. 18) Defendant points out that this is Plaintiff's “Second Amended Complaint”, as she had filed her first amended complaint in the Circuit Court of Cabell County on or about January 30, 2019, nevertheless, Plaintiff filed her “second” amended complaint without leave of court of the parties' consent in violation of Rule 15 of the Federal Rules of Civil Procedure. (ECF No. 21) As noted supra, Plaintiff did not file a response to this Motion.

         THE STANDARD

         Plaintiff is acting pro se, therefore, the Court should liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). However, “[l]iberal construction does not require courts to construct arguments or theories for a pro se plaintiff because this would place a court in the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL 2050409, at *3 (N.D. W.Va. 2007) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). “Moreover, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable in a federal district court.” Miller, 2007 WL 2050409, at *3 (citing Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir. 1990)).

         Discussion

         The “first” amended complaint filed in the Circuit Court of Cabell County, West Virginia is not before this Court, however, the “second” amended complaint filed on March 13, 2019 (ECF No. 18) is. There is no question that after Defendants filed their answers or responsive pleadings that Plaintiff did not move for leave to amend or receive consent from Defendants to file her amended complaint. However, as noted supra, Plaintiff defended her amendment explaining that the only difference from her original complaint included corrected spelling errors or mistakes with respect to the enumerated streets. The undersigned reviewed Plaintiff's “original” complaint that was filed in the Circuit Court of Cabell County and attached to Defendants City of Huntington and the Huntington Police Department's notice of removal (ECF No. 1-1 at 4-6) and notes that the amended complaint filed on March 13, 2019 (ECF No. 18) is virtually identical to the original complaint with the exceptions detailed by Plaintiff. Indeed, Plaintiff changed a couple of phrases (i.e. from “all black MUPD SUV and the HPD officer sitting in the corner of lot pulled off” to “all black MUPD SUV parked at corner of 10th St. and 9th Ave on odd side of street and the HPD officer sitting in the corner of Marathon lot pulled off”; from “Coochie” to “vagina”), but in all substantive respects, the allegations are exactly the same.

         Though sometimes couched as amendments, and not specifically referenced by Defendants in their respective Motions to Strike, Plaintiff has filed “Additional Documentation” that appears to concern materials that are related to various degrees to the allegations contained in her complaint. Indeed, Plaintiff filed these ‘pleadings' after Defendants filed their answers and responsive pleadings without asking leave of Court or with the consent of the opposing parties. However, because Plaintiff is acting pro se, the documents she has filed in this case are held to a less stringent standard than had they been prepared by a lawyer, therefore, they are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Further, because Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a court “should freely give leave when justice so requires”, the Court declines to hold Plaintiff to the strict construction of Rule 15, and therefore will freely permit Plaintiff's pleadings and will consider them under the less stringent standard espoused by the jurisprudence governing pro se litigants. Plaintiff is hereby put on notice that any “Additional Documentation” or “Amendments” MUST be accompanied by a Motion requesting the appropriate relief.

         Accordingly, Defendants Motions (ECF Nos. 6, ...


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