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Marmolejo v. Penzone

United States District Court, D. Arizona

August 21, 2018

David Marmolejo, Plaintiff,
v.
Paul Penzone, et al., Defendants.

          ORDER

          Eileen S. Willett United States Magistrate Judge

         Plaintiff David Marmolejo, who is confined by the Texas Department of Criminal Justice, in the C.T. Terrell Unit, in Rosharon, Texas, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The Court ordered Defendants Alverez and CS105 to answer the threat to safety claim in Count I of the Complaint and dismissed Count II and Defendant Penzone without prejudice. (Doc. 7 at 10). Defendants answered the Complaint. (Doc. 12).

         On April 6, 2018, Plaintiff filed a document entitled “Civil Right's [sic] Complaint by a Prisoner” which the Court construes as a motion to amend the Complaint and proposed Amended Complaint. (Doc. 9). Plaintiff also filed a “Reply to Defendants Answer With Leave.” (Doc. 15). The Court will strike Plaintiff's Reply as an unauthorized filing. The Court will deny without prejudice Plaintiff's motion to amend his Complaint and strike the proposed Amended Complaint.

         I. DISCUSSION

         A. “Civil Right's [sic] Complaint by a Prisoner” (Doc. 9)

         “A district court has discretion to adopt local rules. . . . Those rules have ‘the force of law.'” Hollingsworth v. Perry, 558 U.S. 183 (2010) (citation omitted). Hence, both the parties and the Court are bound by the local rules. LRCiv. 83.3(c) (1) (“Anyone appearing before the court is bound by these Local Rules.”); Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994). A district court's departure from its local rules is justified only if the effect is “so slight and unimportant that the sensible treatment is to overlook [it].” Id. (internal quotation marks and citation omitted).

         Local Rule 15.1(a) provides that:

A party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion, 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. The proposed amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits.

LRCiv 15.1(a) (emphasis added).

         Here, Plaintiff's proposed Amended Complaint (Doc. 9) does not indicate in what respect it differs from the Complaint (Doc. 1). Plaintiff has not bracketed or struck through the text to be deleted and has not underlined the text to be added. Plaintiff's proposed Amended Complaint (Doc. 9) therefore fails to comply with Local Rule 15.1(a), LRCiv. Plaintiff's failure to comply with Local Rule 15.1(a) hinders the Court's ability to compare the Complaint and Amended Complaints. Therefore, Plaintiff's motion for leave to file an Amended Complaint (Doc. 9) will be denied without prejudice.[1] The proposed Amended Complaint (Doc. 9) shall be stricken. Plaintiff may refile a Motion for Leave to Amend his Complaint and proposed Amended Complaint that complies with Local Rule 15.1(a), LRCiv.

         B. “Reply to Defendants Answer With Leave.” (Doc. 15)

         Plaintiff has responded to Defendants' Answer by filing a reply. The Federal Rules of Civil Procedure do not authorize the filing of a reply to Defendants' Answer. See Fed. R. Civ. P. 7 (a) (specifically delineating pleadings that a party may file); LRCiv 7.2 (m) (stating that the Court may strike a pleading that is not authorized by rule, statute, or court order). Because Plaintiffs Reply is an unauthorized pleading, the Court will strike it.

         II. CONCLUSION

         For the reasons set forth herein, IT IS ORDERED denying without prejudice Plaintiffs “Civil Right's [sic] Complaint by a Prisoner” which the Court construes as a motion to amend the Complaint. (Doc. 9). The proposed ...


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