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Boe v. Ryan

United States District Court, D. Arizona

July 5, 2016

Scott Warren Boe, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          Scott Warren Boe, Plaintiff, Pro Se.

          Marlene Coffey, Deputy Warden, Defendant, represented by Christopher Phillip White, Office of the Attorney General.

          Keith Smith, Defendant, represented by Christopher Phillip White, Office of the Attorney General.

          REPORT AND RECOMMENDATION

          DEBORAH M. FINE, Magistrate Judge.

         TO THE HONORABLE STEVEN P. LOGAN:

         Before 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. § 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 follows.

         I. Background.

         Plaintiff 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.

         At the 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. 31).

         On 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.)

         II. Plaintiff Has Again Failed to Comply with LRCiv 15.1.

         On 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.

         Because 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.

         If undersigned ordered that Plaintiff's motion at Doc. 38 be denied without prejudice because of his failure to follow LRCiv 15.1(a)[1], 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 ...


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