United States District Court, D. Arizona
Warren Boe, Plaintiff, Pro Se.
Marlene Coffey, Deputy Warden, Defendant, represented by
Christopher Phillip White, Office of the Attorney General.
Smith, Defendant, represented by Christopher Phillip White,
Office of the Attorney General.
REPORT AND RECOMMENDATION
DEBORAH M. FINE, Magistrate Judge.
HONORABLE STEVEN P. LOGAN:
the Court is Plaintiff's Motion to Amend/Correct the
Complaint styled as a "Motion for Leave to File
Supplemental Pleading" (Doc. 38) filed on April 28,
2016. Defendants responded in opposition (Doc. 41), and on
May, 27, 2016, Plaintiff filed a reply in support of his
motion (Doc. 43). This matter is before the undersigned on
referral from the District Judge. The Court has a continuing
obligation to screen complaints brought by prisoners seeking
relief against an officer or employee of a governmental
entity. See 28 U.S.C. Â§ 1915A(a). The screening
requirement extends to proposed amended complaints. Because a
magistrate judge cannot decide a "matter dispositive of
a claim or defense or a prisoner petition challenging the
conditions of confinement, " Rule 72(b)(1), Federal
Rules of Civil Procedure, the undersigned recommends as
filed a pro se prisoner civil rights Complaint on December 7,
2015 (Doc. 1). On December 22, 2015, Plaintiff filed his
three-count First Amended Complaint (Doc. 15). On January 11,
2016, the Court entered an Order (Doc. 19) directing
Defendants Coffrey and Smith to answer Count One of the First
Amended Complaint and dismissing the remaining claims and
Defendants without prejudice.
beginning of February 2016, Plaintiff was transferred from
ASPC-Lewis to ASPC-Yuma. (See Doc. 22.) Within days of his
arrival there, Plaintiff filed a Motion for Leave to Amend
Complaint (Doc. 25) and lodged a Second Amended Complaint
signed February 5, 2016 (Doc. 26). The lodged (second)
amended complaint failed to comply with LRCiv 15.1(a). Thus,
on March 22, 2016, this Court denied Plaintiff's Motion
for Leave to File Amended Complaint (Doc. 25) and ordered the
lodged (second) amended complaint (Doc. 26) stricken (Doc.
April 4, 2016, Defendants Coffey and Smith answered Count I
of Plaintiff's First Amended Complaint. (Doc. 33.) The
next day, the Court issued its Scheduling Order (Doc. 34).
Among its deadlines, the Court ordered a June 6, 2016,
deadline for all motions to amend the complaint or to add
parties. ( Id. at 2.)
Plaintiff Has Again Failed to Comply with LRCiv 15.1.
April 28, 2016. Plaintiff filed a Motion to Amend/Correct the
Complaint styled as a "Motion for Leave to File
Supplemental Pleading" (Doc. 38) proposing a complaint
that is identical to the stricken lodged proposed Second
Amended Complaint (Doc. 26) including the date that it was
signed: February 5, 2016. (Doc. 38). Rather than comply with
LRCiv 15.1, Plaintiff has lodged the same exact proposed
pleading, calling it instead a supplemental complaint, which
is still not in compliance with LRCiv 15.1. ( See
Doc. 26 and Doc. 38.) Plaintiff admits in his reply that the
proposed complaint in Doc. 38 is exactly the same as stricken
Doc. 26 (Doc. 43). Plaintiff states that his more recent
motion (Doc. 38) is brought as a supplemental pleading under
Rule 15(d), Federal Rules of Civil Procedure, and, thus,
should be considered under Rule 15(d)'s standard.
Id. Regardless of what the motion proposing a new
complaint is named, LRCiv 15.1 applies.
Plaintiff has docketed two prior complaints (and sought to
docket a third), Plaintiff is not entitled to amend his
complaint without leave of the Court or consent of the
opposing party. See Fed.R.Civ.P. 15(a)(1). (Fed. R.
Civ. P. 15(a)(1) provides that a party may amend its pleading
once as a matter of course. In all other cases, Fed.R.Civ.P.
15(a)(2) provides that "a party may amend its pleading
only with the opposing party's written consent or the
court's leave.") Thus, Plaintiff must obtain the
Court's leave to file another amended complaint. A proper
motion for leave to amend attaches a copy of the proposed
amended pleading "which must indicate in what respect it
differs from the pleading which it amends, by bracketing or
striking through the text to be deleted and underlining the
text to be added." LRCiv 15.1(a). Plaintiff's motion
and accompanying proposed complaint again fails to comply
with LRCiv 15.1(a). Plaintiff also failed to indicate whether
he was adding any new defendant to his list of defendants,
especially since he is, at the end of Count II of the
proposed second amended complaint, making allegations arising
from a new prison facility.
undersigned ordered that Plaintiff's motion at Doc. 38 be
denied without prejudice because of his failure to follow
LRCiv 15.1(a), Plaintiff will be outside of the time
limit of the scheduling order for filing a new motion to
amend the complaint in compliance with LRCiv 15.1(a). (
See Scheduling Order at ...