UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

THEODORE ROBERT, )

Plaintiff, )

)

v. ) CAUSE NO. 2:13-CV-274-JD-JEM 

)

CITY OF SOUTH BEND INDIANA, et al., ) 

Defendants. )

FINDINGS, REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE PURSUANT TO

28 U.S.C. § 636(b)(1)(B) & (C)

This matter is before the Court on a Motion to Dismiss Plaintiff’s Second Amended

Complaint [DE 33], filed by Defendants on April 6, 2015. Plaintiff filed a response on May 12,

2015, and on May 21, 2015, Defendants filed a reply.

On October 28, 2015, Judge Jon E. DeGuilio entered an Order [DE 45] referring this matter

to the undersigned Magistrate Judge for a report and recommendation on the instant Motion pursuant

to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge’s combined

proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the following

reasons, the Court recommends that the District Court grant Defendants’ Motion to Dismiss.

I. Procedural Background

Plaintiff filed his First Amended Complaint on December 4, 2013, alleging racial

discrimination at his place of employment as a police officer for the City of South Bend. Defendants

filed a motion requesting that the Court dismiss the claims against them and order Plaintiff to file

a more definite statement, and District Court Judge Jon E. DeGuilio referred the motion to the

undersigned Magistrate Judge for a report and recommendation. On February 5, 2015, Judge

DeGuilio adopted the Court’s recommendation in its entirety, dismissing with prejudice Plaintiff’s 
time-barred claims for refusal to hire, and dismissing without prejudice Plaintiff’s hostile work

environment claim and all claims against the individual defendants. Judge DeGuilio ordered Plaintiff

to file a Second Amended Complaint consistent with his Order and the Report and

Recommendation. Plaintiff filed his Second Amended Complaint on March 6, 2015. In the instant

Motion, Defendants request that the Court dismiss all of Plaintiff’s claims in their entirety with

prejudice pursuant to Rule 8(a) and 12(b)(6). 

II. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chicago, 910 F.2d

1510, 1520 (7th Cir. 1990). In ruling on such a motion, the Court accepts as true all of the wellpleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526

F.3d 1074, 1082 (7th Cir. 2008). 

To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must first

comply with Rule 8(a) 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), such that the defendant is given “fair notice of

what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). 

Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see

also Tamayo, 526 F.3d at 1082. The Supreme Court explained that the “plaintiff’s obligation to

provide the grounds of his entitlement to relief requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(quotation marks and brackets omitted); see also Iqbal, 556 U.S. at 678-79; Brooks v. Ross, 578 F.3d

574, 581 (7th Cir. 2009). The Seventh Circuit Court of Appeals has explained that “[t]he complaint

‘must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right

to relief above the speculative level.’” Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d

930, 935 (7th Cir. 2012) (quoting Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.

Serv., 536 F.3d 663, 668 (7th Cir. 2008)). In order “[t]o meet this plausibility standard, the

complaint must supply enough fact to raise a reasonable expectation that discovery will reveal

evidence supporting the plaintiff’s allegations.” Indep. Trust Corp., 665 F.3d at 934-935 (quoting

Twombly, 550 U.S. at 556) (quotation marks omitted).

III. Analysis

In the instant Motion, Defendants move to dismiss the entirety of Plaintiff’s Second

Amended Complaint with prejudice. Defendants argue that Plaintiff’s Second Amended Complaint

continues to include all of the claims previously dismissed by the Court and does not address any

of the deficiencies identified in the First Amended Complaint. Plaintiff argues that his Second

Amended Complaint complies with the Court’s directions and does not warrant dismissal with

prejudice.

 Defendants argue that Plaintiff continues to include the time-barred failure to hire claims

that were dismissed with prejudice. In response, Plaintiff argues that the facts surrounding the

untimely failure to hire allegations are not intended to be claims, but are “evidence in support and

background material, which strengthens his hostile work environment claim.” However, Plaintiff’s

hostile work environment claim has also been dismissed. Claims for the alleged January 2010 and

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March 2011 failures to hire are time barred and have been dismissed with prejudice; these claims

cannot be included in this or any future complaints.

Plaintiff’s Second Amended Complaint also re-alleges the hostile work environment claim

that are, as Defendants argue, based on allegations the Court already deemed insufficient. This

claim has already been dismissed, and Plaintiff has not been granted leave to re-allege it. Fed. R.

Civ. P. 15(a)(2). Plaintiff argues that he is intending to incorporate by reference all three

complaints, which together sufficiently plead a hostile work environment claim. Even if the Court

construes this as a request to amend pursuant to Rule 15, his argument fails. When reviewing an

amended complaint the Court relies only on the facts and allegations in the most recent complaint. 

See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999) (“[W]hen a plaintiff files an amended

complaint, the new complaint supersedes all previous complaints and controls the case from that

point forward.”); N.D. Ind. L.R. 15-1(b)(2) (“Amendments to a pleading . . . must not incorporate

another pleading by reference.”). Furthermore, Plaintiff still does not describe any racially offensive

utterance, let alone any physical threats or humiliations based on his race. See Montgomery v. Am.

Airlines, Inc., 626 F.3d 382, 390 (7th Cir. 2010) (citing Chaney v. Plainfield Healthcare Ctr., 612

F.3d 908, 912 (7th Cir. 2010); Mendenhall v. Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir.

2005); McKenzie v. Milwaukee County, 381 F.3d 619, 624 (7th Cir. 2004). As the Court

previously explained, “Plaintiff has not presented any indication of an environment with such severe

and pervasive discriminatory conduct that it could objectively be considered racially offensive,” and

incorporating time-barred claims of failure to hire him for another position does not breathe new life

into his hostile work environment claim. 

Likewise, Plaintiff’s claims against the individual defendants have already been dismissed,

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and Plaintiff was ordered to file a Second Amended Complaint that reflected that dismissal. The fact

that “Counsel for Plaintiff after reading the Opinion and Order changed his mind” about dismissing

his claims against the individual defendants, Pl. Br. 2 [DE 37], is not sufficient to resurrect them. 

In the instant Motion, Defendants also argue the merits of their contention that Plaintiff’s claims

against the individual defendants fail to state a claim on which relief can be granted, but since these

claims have already been dismissed the Court need not address their arguments.

 To the extent that Plaintiff is attempting to resurrect the claims that were dismissed without

prejudice or add new claims, he has not been granted leave to do so. Fed. R. Civ. Pro. 15(a)(2). 

Instead, he was ordered to file a Second Amended Complaint that did not include the two timebarred claims for failure to hire, the claim for hostile work environment, or the claims against the

individual defendants. Rather than comply with the Order and file a streamlined document that

accurately reflected his remaining claims, Plaintiff filed a Second Amended Complaint that is three

pages longer than the first and, although the eight counts are squeezed into five and the paragraphs

renumbered, still includes all of the individual defendants and claims that were previously dismissed. 

Since Plaintiff has had ample opportunity to address the shortcomings in these claims and has shown

disregard for Judge DeGuilio’s explicit directions regarding the contents of his Second Amended

Complaint, the Court recommends that these claims now be dismissed with prejudice. Gen. Elec.

Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997) (“[W]here the plaintiff

has repeatedly failed to remedy the same deficiency, the district court did not abuse its discretion

by dismissing the claim with prejudice.”). 

In addition to affirming the dismissal of the claims that have already been dismissed,

Defendants also request that the entirety of Plaintiff’s Second Amended Complaint be dismissed

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with prejudice. Although dismissal of a number of his claims remains appropriate as described

above, dismissal with prejudice of the entire case is a harsh sanction. Particularly since some of

Plaintiff’s claims were not initially dismissed, the Court recommends that Plaintiff be given one final

attempt to comply with the directives he has been given. However, the Court recommends that,

rather than allow Plaintiff to simply amend his complaint a third time, he instead be granted to leave

to file a motion to amend his complaint pursuant to Federal Rule of Civil Procedure 15(a)(2) and

Local Rule 15-1 with a description of how the proposed Third Amended Complaint complies with

prior Orders and the Federal Rules. If Plaintiff fails to comply, dismissal of the entire case with

prejudice may be appropriate. See Airborne Beepers & Video, Inc. v. AT&T Mobility LLC., 499 F.3d

663, 667 (7th Cir. 2007) (affirming the district court’s decision to dismiss an amended pleading with

prejudice after numerous warnings and four opportunities to correct the pleadings’ shortcomings).

IV. Conclusion

For the foregoing reasons, the Court RECOMMENDS that the District Court GRANT in

part the Motion For Dismissal of Plaintiff’s Second Amended Complaint [DE 30] and dismiss

Plaintiff’s Second Amended Complaint in its entirety, reaffirming the dismissal with prejudice of

the time-barred claims for failure to hire and dismissing with prejudice the hostile work environment

claim and the claims against the individual defendants. The Court recommends that the District

Court DENY Defendants’ request that entire case be dismissed with prejudice and instead grant

Plaintiff leave to file, within a limited time period, a motion to amend complaint that includes only

those claims that have not been dismissed.

This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(C). 

Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen (14) days after being served with

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a copy of this Recommendation to file written objections thereto with the Clerk of Court. The

failure to file a timely objection will result in waiver of the right to challenge this Recommendation

before either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902,

904 (7th Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); Provident Bank v.

Manor Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989). 

SO ORDERED this 25th day of January, 2016.

/s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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