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Payne v. Duncan

United States District Court, M.D. Pennsylvania

May 15, 2015

JOSHUA PAYNE, Plaintiff,
v.
C/O DUNCAN, et al., Defendants.

MEMORANDUM

ROBERT D. MARIANI, District Judge.

I. Background

On August 21, 2013, Plaintiff, Joshua Payne, a pro se prisoner, initiated the above-captioned civil rights action pursuant to 42 U.S.C. § 1983, alleging constitutional violations for events that occurred at the State Correctional Institution at Camp Hill, Pennsylvania. (Doc. 1). The named Defendants are Unit Manager Scott Whalen and Corrections Officers Duncan, Ziegler, and Huber. (Id. at ¶¶ 5, 6).

By Memorandum and Order dated April 23, 2014, Defendants' partial motion to dismiss was granted and Defendants Huber and Whalen were dismissed as parties to this action. (Docs. 21, 22). The sole remaining claim is based on an alleged retaliatory cell search against Defendants Duncan and Ziegler. (Id. ) On May 8, 2014, Defendants Duncan and Ziegler filed an answer to the complaint. (Doc. 23). Presently before the Court is Plaintiffs motion for leave to amend/supplement his original complaint. (Doc. 50). In his motion, Plaintiff states, inter alia, that "new issues have arise[n] & Plaintiff wish[es] to add them to the complaint." (Id. ) For the reasons that follow, Plaintiffs motion for leave to file an amended/supplemental complaint will be denied.

II. Discussion

The filing of an amended complaint is governed by Federal Rule of Civil Procedure 15(a):

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

FED. R. CIV. P. 15(a).

Plaintiff's original complaint was filed on August 21, 2013. (Doc. 1). Defendants filed their Rule 12(b) partial motion to dismiss on January 28, 2014. (Doc. 14). Plaintiffs motion to file an amended complaint was not filed until March 5, 2015, (Doc. 50), clearly past the time period allotted for filing an amended complaint as a matter of course. Plaintiff has not obtained the opposing parties' written consent thus, at this point, Plaintiff is required to request leave of court to file such a pleading. See FED. R. CIV. P. 15(a)(2).

Local Rule 15.1 (a) requires that when "a party files a motion requesting leave to file an amended pleading, " the party must include with the motion as a separate document the proposed amended pleading "complete in itself including exhibits." M.D. Pa. Local Rule 15.1 (a). In addition, Local Rule 15.1 (b) provides that motions to amend a complaint must also be accompanied by "a copy of the original pleading in which stricken material has been lined through and any new material has been inserted and underlined or set forth in bold-faced type." M.D. Pa. Local Rule 15.1 (b). Plaintiff has failed to submit a proposed amended pleading or provide a copy of the original pleading with the changes noted. Without a proposed amended complaint complete in itself, the Court cannot determine whether the amendment is proper under Rule 15(a). See Panetta v. SAP America, Inc., 294 Fed.Appx. 715, 717-18 (3d Cir. 2008) (setting forth the grounds upon which a district court may deny leave to amend, which include "undue prejudice to the opposing party by virtue of allowance of the amendment" and "futility of amendment"), quoting Foman v. Davis, 371 U.S. 178, 182 (1962).

In the motion to amend, Plaintiff claims that his allegations are not that Defendants searched his cell in retaliation for filing complaints against the Defendants.[1] (Doc. 50, ¶ 2). Rather, Plaintiff now claims that Defendants threw away his personal property in retaliation for filing grievances against the Defendants and for complaining that Duncan gave him a razor to purportedly commit suicide. (Id. ). Thus, Plaintiff now states that the retaliatory act was the throwing away of certain pieces of his property, and not the cell search. (Id. ) In response, Defendants argue that ...


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