United States District Court, W.D. Pennsylvania
ORDER RE: ECF NO. 69
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
before the Court is a Motion for Leave to File an Amended
Complaint filed by Plaintiff Byron Jones
(“Plaintiff”). ECF No. 69.
relevant procedural history of this case is as follows.
Acting pro se, Plaintiff instituted this action on
December 3, 2014. ECF No. 1. Following the entry of two
deficiency orders, Plaintiff's Complaint was filed on
February 2, 2015. ECF No. 12. After an Order was entered that
transferred claims against seven Defendants to the United
States District Court for the Middle District of
Pennsylvania, this Court directed Plaintiff to file an
Amended Complaint against the remaining Defendants, Sposato
and Hite, by August 10, 2015. ECF No. 18. After this Court
issued an Order to Show Cause, Plaintiff filed an Amended
Complaint on August 31, 2015. ECF No. 22.
September 2, 2015, this Court issued another deficiency
order. ECF No. 23. By October 19, 2015, Plaintiff had cured
the deficiencies identified by the Court. ECF No. 25.
Defendants Sposato and Hite filed a Motion to Dismiss on
February 1, 2016 (“the first Motion to Dismiss”).
ECF No. 35. Plaintiff was ordered to respond to the first
Motion to Dismiss by February 22, 2016. ECF No. 37. Plaintiff
sought an extension of time in which to respond. ECF No. 39.
The Court granted Plaintiff an extension until March 22,
2016. ECF No. 40. Plaintiff filed his Response on March 28,
2016. ECF No. 41.
Court issued a Report and Recommendation as to the Motion to
Dismiss on August 9, 2016. ECF No. 44. Objections thereto
were due by August 26, 2016. Id. On August 30, 2016,
Plaintiff sought an extension of time in which to file
Objections. ECF No. 45. Also on August 30, 2016, Plaintiff
was granted an extension of time until September 9, 2016, to
file Objections. ECF No. 46. Plaintiff filed his Objections
on September 19, 2016. ECF No. 48.
original Report and Recommendation was Amended on January 20,
2017. ECF No. 53. In the Amended Report and Recommendation,
it was recommended that the first Motion to Dismiss be denied
as to Defendant Sposato and granted as to Defendant Hite
“without prejudice for Plaintiff to file a Second
Amended Complaint in which Plaintiff shall set forth
all desired allegations and claims against all
parties, superseding all allegations and claims in prior
Complaints and Plaintiff's Objections.”
Id. at 7 (emphasis added). In a February 27, 2017,
Order of Court, the first Motion to Dismiss was denied as to
the claims against Defendant Sposato and granted as to the
claims against Defendant Hite without prejudice to
Plaintiff's ability to file “a Second Amended
Complaint in which Plaintiff shall set forth all desired
allegations and claims against all
parties.” ECF No. 55 (emphasis added).
February 27, 2017, Order directed Plaintiff to file the
Second Amended Complaint within 20 days, i.e., by March 20,
2017. Id. On March 22, 2017, Plaintiff filed a
Motion seeking until April 10, 2017, to file his Second
Amended Complaint. ECF No. 56. That request was granted. ECF
filed his Second Amended Complaint on March 28, 2017. ECF No.
58. Therein, he set forth claims against Defendant Hite only.
Id. On May 12, 2017, Defendant Hite filed a Motion
to Dismiss (“the second Motion to Dismiss”) and a
Brief in support thereof. ECF Nos. 62 and 63. In the Brief,
counsel for Defendant Hite (who is also counsel for Defendant
This is the second Motion to Dismiss filed in this case.
Previously, Plaintiff filed an action against two defendants,
Case Manager Sposato and Counselor Hite. In a Report and
Recommendation dated January 20, 2017, this Court granted in
part and denied in part Defendants' Motion to Dismiss.
Doc. No. 53. Specifically, the Court denied the Motion to
Dismiss “as to the claims against Defendant Sposato and
granted [the MTD] as to the claims against Defendant Hite
without prejudice for Plaintiff to file a second Amended
Complaint.” Id. at p. 7. For the Second
Amended Complaint, this Court specifically directed Plaintiff
as follows: “Plaintiff shall set forth all desired
allegations and claims against all parties, superseding
all allegations and claims in prior Complaints and
Plaintiff's Objections.” Id. (emphasis
added); see also Doc. No. 55 (Order adopting R & R). In
this Second Amended Complaint, presently before the Court,
Plaintiff only presents claims against Defendant Hite and
abandons any claim against Defendant Sposato.
ECF No. 63 at 1 n.1 (emphasis in original).
Report and Recommendation on the second Motion to Dismiss
filed on July 26, 2017, this Court noted that Plaintiff did
not name or allege any legal claim against Defendant Sposato
in his second Amended Complaint. ECF No. 66 at 4.
Accordingly, it was recommended that Defendant Sposato be
terminated from the case because “Plaintiff neither
names her as a defendant in the operative Complaint in which
Plaintiff was ordered to set forth all desired allegations
and claims against all parties, nor does he assert a claim
against her therein.” Id. at 8.
August 17, 2017, Plaintiff filed the instant Motion for Leave
to File an Amended Complaint naming both Defendants. ECF No.
69. Therein, Plaintiff asserts that he “misunderstood
the court's instructions which indicated that he had to
set forth all desired allegations and claims against all
parties in the second Amended Complaint” and that he
mistakenly omitted claims against Defendant Sposato therein.
Id. at 3. Plaintiff alleges that he seeks to rectify
an oversight and that this Motion is not unduly delayed nor
will it cause undue prejudice to Defendants. Id. The
Court disagrees. Assuming arguendo that the clear directions
from the Court as to the requisite nature of his second
Amended Complaint were misunderstood, Plaintiff had notice of
his “oversight” via the May 12, 2017, Brief filed
by Defendant Hite. Plaintiff did not seek to file a Third
Amended Complaint until August 17, 2017, more than three
months later, after the second Motion to Dismiss had been
briefed and considered and a Report and Recommendation had
been issued thereupon.
present posture, this 2014 case, which has been delayed on
multiple occasions by Plaintiff's hand, is on the
precipice of dismissal. To allow Plaintiff to file a Third
Amended Complaint just before the second of two Motions to
Dismiss is fully ...