The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Plaintiffs's Motion to Reconsider the Court's Order Dismissing Counts I, II, III, IV, V, VI, and VII with Prejudice (Doc. 42). Also before the Court is Plaintiffs's Motion to Amend Counts I, II, III, IV, V, VI, and VII (Doc. 44). For the following reasons, the Court DENIES both Motions.
On November 25, 2008, Plaintiffs filed a twenty-two count complaint alleging that Defendants violated the Eighth and Fourteenth Amendment rights of Plaintiffs's deceased son, who died of cocaine intoxication while in Defendants's custody. On February 17, 2009, Defendant Todd W. Liston filed a Motion to Dismiss the claims against him, asserting that Plaintiffs had failed to allege that he was involved in or acquiesced in the alleged constitutional violations suffered by Plaintiffs's deceased son. Also on February 17, 2009, Defendants Tate Myers and Troy Love filed a Motion to Dismiss the claims against them, asserting that the facts alleged in the Complaint did not state a claim upon which relief could be granted. Under Local Rule 7.1(c), Plaintiffs's responses were due 30 days after the Motions to Dismiss were filed. On May 14, 2009, 86 days after the Motions to Dismiss were filed, the Court entered an Order to Show Cause why Plaintiffs's failure to respond to the Motions should not be construed as an admission by Plaintiffs to the merits of the Motions. Plaintiffs were given two weeks to respond to the Order to Show Cause.
Plaintiffs's response, filed May 26, 2009, did not address the Motion to Dismiss filed by Defendants Love and Myers. As to Defendant Liston's Motion to Dismiss, the response merely stated "Plaintiffs admit that Counts I, II and III should be dismissed as currently pled. Plaintiffs request twenty-one (21) days to file amended Counts I, II, and III." Plaintiffs gave the Court no indication of how they intended to amend the complaint so as to state a claim against Defendant Liston. Nor did Plaintiffs indicate why, having been on notice of the deficiencies in their complaint for 97 days, they needed an additional 21 days to cure them. Twenty-one days later, on June 16, 2009, having received nothing further from Plaintiffs, the Court dismissed the claims against Defendants Liston, Love and Myers with prejudice. The following day, Plaintiffs filed the instant Motion to Reconsider and a Motion to Amend their complaint.
In the Motion to Reconsider, Plaintiffs's counsel, S. Craig Smith, informs the Court that he was away from his office for the months of April and May for personal reasons. He does not say whether he attempted to find another attorney to handle his cases for those months. Nor does he explain why he was unable to respond by mid-March to motions filed in mid-February merely because he was out of the office in April and May. At any rate, Smith claims that, on returning to his office, he responded to Liston's Motion to Dismiss, but overlooked the Motion filed by Myers and Love. However, it is clear from the substance of the response filed that it was addressed to the Court's Order to Show Cause, not to Liston's Motion. The Order to Show Cause clearly pointed counsel to both Motions to Dismiss. Therefore, the Court is at a loss as to how Smith could have overlooked both the Motion to Dismiss itself and the references to it in the Show Cause Order.
Moreover, the instant Motion to Reconsider and the Memorandum in Support of that Motion do not address the legal standard governing motions to reconsider. Instead, Smith addresses the standard governing a motion to dismiss by quoting the now-defunct language of Conley v. Gibson, 355 U.S. 41, 45-6 (1957), abrogated by Bell Atlantic v. Twombly, 550 U.S. 544 (2007). In addition to citing an outdated case and applying the wrong legal standard, Smith also appears to have misapprehended the underpinnings of the Motion to Dismiss filed by Defendants Love and Myers. Defendants did not move for dismissal, and the Court did not grant it, merely because Plaintiffs used the words "utter indifference or conscience disregard" rather than the words "deliberate indifference." There are no "magic words" that plaintiffs must use in order to state a claim. Rather, plaintiffs must simply meet federal pleading requirements by providing "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
Defendants Love and Myers argued that, in order to show that they are entitled to relief, Plaintiffs had to plead facts from which an inference could be drawn that Love and Myers exhibited deliberate indifference to the decedent's serious medical need. Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006). The facts alleged by Plaintiffs could not support such an inference, argued Defendants, because Plaintiffs alleged merely that Defendants "knew or should have known" about the serious medical needs of the decedent. Taken as true, those allegations support an inference of nothing more than mere negligence. Therefore, Plaintiffs failed to state a claim upon which relief could be granted. The Court has reviewed Plaintiffs's proposed Amended Complaint, and notes that the substantive deficiencies complained of by Defendants Love and Myers have not been corrected.
At this point, the Court will enumerate the myriad substantive, procedural, and typographical errors committed by Plaintiffs and Plaintiffs's counsel since the inception of this case.
* Plaintiffs named Todd W. Liston in the caption of the case, but did not include him in the body of the complaint.
* Plaintiffs alleged counts in the body of the complaint against Robinson Police Department, but did not name it in the caption of the complaint.
* Plaintiffs brought claims against the Crawford County Board, an entity without the legal capacity to be sued.
* Plaintiffs mislabeled Count 20 as Count 17 and Count 22 as Count 19, resulting in two "Count 17s" and two "Count 19s" and much confusion.
* Plaintiffs were dilatory in meeting their filing obligations, as outlined above.
* Plaintiffs failed to support their Motion to Reconsider with citations to the ...