Miles v. Tierra

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION JAVONTE JASHON MILES Plaintiff, v. CAUSE NO.: 2:22-CV-71-TLS-JEM TIARA LEACH, C.O. RAMIREZ, C.O.

GONZALEZ, C.O. GRAND, C.O KEMPKEE, BRYTTANY HOWARD, JENNY MURPHY, JAIME SMITH, HEATHER BOHLING, CAMILLE EVANS, JOHN TREZAM, DAWN WILSON, DIANA REED, CERA CAIN, JOHN LOEROP, TINA WINKLER, GAYLE ELLIOT, VICKI SALLAY, JIMMY WHITE, DR. FORGEY, and DR. WILLIAM MESCALL, Defendants.

OPINION AND ORDER This matter is before the Court on a Stipulation for Dismissal Pursuant to Federal Rule of Civil Procedure 41 [ECF No. 95], filed on December 21, 2023. The Plaintiff and Defendants C.O.

Gonzalez, C.O. Ramirez, C.O. Grand, C.O. Kempkee, Dr. William Mescall, and Tina Winkler stipulate to the dismissal of only Defendants C.O. Gonzalez, C.O. Ramirez, C.O. Grand, C.O.

Kempkee, Dr. William Mescall, and Tina Winkler under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). However, the Seventh Circuit Court of Appeals has explained that the proper procedure for dismissal of individual parties or claims is by the amendment of pleadings under Federal Rule of Civil Procedure 15(a) and not by dismissal under Federal Rule of Civil Procedure 41(a). Taylor v. Brown, 787 F.3d 851, 857–58, 858 n.9 (7th Cir. 2015) (explaining that “Rule 15(a) allows a plaintiff to amend his complaint—including by adding or dropping parties and claims—as a matter of right in some situations and by court order in others” and reminding district courts to use Rule 15(a) rather than Rule 41(a) for dismissal of individual claims); see also 6 Fed. Prac. & Proc.

Civ. § 1479 (3d ed.).

Accordingly, the Court hereby STRIKES the Stipulation for Dismissal Pursuant to Federal Rule of Civil Procedure 41 [ECF No. 95]. Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court GRANTS the Plaintiff leave to file, on or before January 22, 2024, a third amended complaint to drop C.O. Gonzalez, C.O. Ramirez, C.O. Grand, C.O. Kempkee, Dr. William Mescall, and Tina Winkler as defendants.

SO ORDERED on January 9, 2024. s/ Theresa L. Springmann JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT