The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Tuesday, 18 October, 2011 02:57:11 PM
Clerk, U.S. District Court, ILCD
ORDER This matter is before the Court on Magistrate Judge Byron Cudmore's Report and Recommendation [#49]. Therein, the Magistrate Judge recommends that Defendant Judge Albert Purham's ("Judge Purham") Motion to Dismiss Supplemental Amended Complaint ("Motion to Dismiss") (#33) be ALLOWED and Plaintiff Amy Elise Eckardt's ("Plaintiff" or "Eckardt") Motion for Leave to File Second Amended Complaint ("Leave to Amend Motion") (#31) and Plaintiff's Motion to Correct Plaintiff's Motion for Leave to File Second Amended Complaint ("Motion to Correct") (#36) be DENIED.
On September 26, 2011, Plaintiff filed a "Response" to the Report and Recommendation ("Objection") within the time required requesting that this Court "renounce" the Report and Recommendation and proceed with her new Amended Complaint. In her response, Plaintiff explains that her central complaint is that she "was accused of a crime and did not have a trial." She further explains that the "Defendants as Judges in their official capacity and individual capacity did not report child abuse." And finally, she alleges that "RICO crimes covered up the actual events that transpired in Tazewell County Courthouse by keeping Plaintiff's rights restrained." On the same date Plaintiff filed her objection, she also filed a Motion to Challenge the Amendments to the Constitution of the United States ("Constitutional Amendment Challenge Motion") (#51). In this Motion, Plaintiff again asks this Court to proceed with her case. On October 13, 2011, Defendant Judge Purham filed his responses to the Plaintiff's Objection and Constitutional Amendment Challenge Motion. The matters presented above are now ready for ruling.
For reasons stated herein, this Court ADOPTS the Magistrate Judge's Report and Recommendation (#49). Plaintiff's Motion for Leave to File Second Amended Complaint (#31) and Statement Corrected to Plaintiff's Motion for Leave to File Second Amended Complaint (#36) are DENIED. Defendant's Motion to Dismiss Supplemental Amended Complaint (#33) is GRANTED. Outside the scope of the Report and Recommendation, this Court additionally DENIES Plaintiff's Motion to Challenge the Fifth, Sixth, Eighth and Ninth Amendments to the United States Constitution (#51).
A district court reviews de novo any portion of a magistrate judge's report and recommendation to which written objections have been made. See Fed. R. Civ. P. 72(b). "The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id.
In resolving a motion to dismiss, this Court must consider all well-pled facts as true and must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat. Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993), cert. denied, 114 S.Ct. 602 (1993). In ruling on a motion to dismiss, courts consider whether relief is possible under any set of facts that could be established consistent with the allegations in the Complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). This Court will dismiss a claim only if it is beyond doubt that no set of facts would entitle the Plaintiffs to relief. Chaney v. Suburban Bus Div., 52 F.3d 623, 627 (7th Cir. 1995); Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993). In the instant matter, the Court recognizes that Plaintiff is pro se and in reviewing her complaint the Court should hold it "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).
Under Federal Rule of Civil Procedure 15(a), plaintiffs may amend their complaint once "as a matter of course at any time before a responsive pleading is served;" at any other time "leave [to amend] shall be freely given when justice so requires." A plaintiff's right to amend as a matter of course is not, however, absolute. Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991). When examining whether to grant a motion for leave to amend, the Court must consider whether or not the amendments to the Complaint would be futile. Forman v. Davis, 371 U.S. 178, 182 (1962).
PROCEDURAL AND FACTUAL BACKGROUND
The relevant procedural and factual history are set forth in the current and previous Report & Recommendations of the Magistrate Judge [#28, 29, and 49]; however, the Court ...