The opinion of the court was delivered by: Byron G. Cudmore United States Magistrate Judge
This case is before the Court on Defendants' respective motions to dismiss Plaintiff's Second Amended Complaint (d/e's 36, 43, 55), and on Plaintiff's motion to alter the June 6, 2005 scheduling order (d/e 61).
This case arises from the death of India Taylor ("Ms. Taylor") during her incarceration in Peoria County Jail in October, 2003. Plaintiff's original Complaint (d/e 1) named as defendants Michael McCoy (Sheriff of Peoria County), Steven Smith (Corrections Superintendent of Peoria County), and M. Tranchitella (Correctional Officer). A motion to dismiss followed, which was resolved by the District Court in an order granting and denying in part this Court's Report and Recommendation on the motion. (d/e 22). Plaintiff then filed a First Amended Complaint against the same defendants, in response to this Court's order. (d/e 24).
On May 5, 2005, the parties submitted a joint proposed scheduling plan, that proposed Plaintiff be granted leave to amend complaint to join additional party defendants through October 17, 2005 (d/e 28). On June 2, 2005, this Court entered a scheduling order setting a deadline of October 17, 2005, for motions to join other parties, and a deadline of February 6, 2006 to amend the pleadings. (d/e 30).
On October 17, 2005, Plaintiff filed a Second Amended Complaint, adding eight new defendants and dropping Tranchitella as a defendant.*fn1
The Second Amended Complaint also makes new claims arising from the defendants' alleged destruction of or failure to preserve evidence regarding the circumstances of Ms. Tranchitella's death. Presently before the Court are the motions to dismiss this Second Amended Complaint.
On May 31, 2006, the eight new Defendants consented to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(c) (d/e 72). The original parties consented to the undersigned on August 16, 2005 (d/e 32).
When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court takes the allegations in the complaint as true, viewing all facts, as well as any reasonable inferences, in the light most favorable to the plaintiff. Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004). "'A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002), quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
I. Failure of Plaintiff to file Motion asking Leave to File Second Amended Complaint Defendants Radcliff, Mattus, Hibbert, Johnson, and Advanced
Correctional Healthcare, Inc., (the "Healthcare" Defendants) move to strike the Second Amended Complaint because Plaintiff did not file a motion for leave of Court to amend his Complaint. They point to Fed. R. Civ. P. 15(a), which requires leave of court to amend pleadings after a responsive pleading is served.
Plaintiff counters that the joint proposed discovery plan allowed the filing of amended complaints without leave by October 17, 2005, though the scheduling order entered by the Court stated that no motions to join additional parties to be filed after that date. In addition to his response, Plaintiff has filed a motion to alter the June 5, 2005 orderto reflect that ...