United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Officer Mason Mercure's ("Defendant") Motions to Dismiss [6, 10] Plaintiff Ishnell Jones's ("Plaintiff') Complaint and Amended Complaint for failure to state a claim upon which relief can be granted, and on Plaintiff's Motion for Leave to File a Second Amended Complaint .
On November 26, 2013, Plaintiff filed his Complaint in this action, in which he alleged (1) an excessive force claim claiming that Defendant violated Plaintiff's constitutional rights under the Fourth Amendment by using excessive force during Plaintiff's arrest, and (2) a state law claim for battery under Georgia law. Plaintiff's Complaint is based on his arrest for the possession of crack cocaine after Plaintiff swallowed a bag contained in a pack of cigarettes that Defendant observed in Plaintiffs vehicle. Plaintiff alleges that Defendant applied excessive force on Plaintiff in an attempt to retrieve the bag from Plaintiff's mouth.
On March 25, 2014, Defendant moved to dismiss the original Complaint on the grounds that Defendant is entitled to (1) qualified immunity from Plaintiff's claims based on federal law, and (2) official immunity from Plaintiff's claims based on state law.
Two weeks later, on April 7, 2014, Plaintiff filed his two-count (2) Amended Complaint, in which he asserted claims against Defendant for (1) excessive force under the Fourth Amendment to the United States Constitution, and (2) a state law claim for battery under Georgia law. The next day, on April 8, 2014, Defendant filed his second Motion to Dismiss, seeking to dismiss the Amended Complaint on the same grounds that he moved to dismiss Plaintiff's original Complaint.
On April 10, 2014, Plaintiff filed his Response to the Motion to Dismiss in which he stated that "he is filing a motion to amend with a proposed amended complaint today" that moots Defendant's Motion to Dismiss the Amended Complaint. Pl.'s Resp. to Mot. to Dismiss at 1. Plaintiff did not respond to the arguments raised in Defendant's Motion to Dismiss the Amended Complaint.
On April 10, 2014, Plaintiff moved for leave to file a Second Amended Complaint, in which he stated that "the amended complaint [filed on April 7, 2014] is not the amended complaint he meant to file, but the same pleading as the original complaint, albeit with the word amended' added to the caption." Mot. to Am. at 1. The Second Amended Complaint does not add new claims or parties, but it contains new facts in support of the excessive force claim that were not pled in Plaintiffs original and Amended Complaints.
On April 17, 2014, Defendant responded to the Motion to Amend. Defendant asserts that (1) there are substantial differences between Plaintiff's complaints, and (2) the Motion to Amend should be denied because Plaintiff engaged in undue delay, and Defendant will be prejudiced if the Court allows the Second Amended Complaint to be filed.
Plaintiff's original Complaint in this matter, filed on November 26, 2013, alleged the following facts pertinent to his excessive force claim:
After being placed in handcuffs Officer Mercure began to choke Mr. Jones ordering him to "spit it out." He then tripped Mr. Jones and again choked Mr. Jones while he was on the ground. After he was choked, Mr. Jones requested a supervisor on the scene and stated Officer Mercure "choked him."
Compl. at ¶ 7.
Three and a half months later, on April 7, 2014, Plaintiff filed his Amended Complaint of right under Rule 15(a) of the Federal Rules of Civil Procedure. In the Amended Complaint, Plaintiff alleged the following facts pertinent to his excessive force claim:
Defendant notified Grady EMS immediately. Officer Mercure noticed Mr. Jones had the plastic bag containing the crack cocaine was under Mr. Jones' tongue. Officer Mercure grabbed Mr. Jones' jaw to prevent him from swallowing the plastic bag. Officer Mercure and Mr. Jones fell to the ground. After the tussle, Mr. ...