Weaver v. Ryan, et al.,

Filing 64

ORDER - IT IS ORDERED ADOPTING the report and recommendation of the Magistrate Judge and DENYING plaintiff's motion to amend (doc. 36 ). Signed by Judge Frederick J Martone on 3/4/11. (SAT)

-MEA Weaver v. Ryan, et al.,

Doc. 64

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Tim Wesley Weaver, Plaintiff, vs. Charles L. Ryan, et al.,

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No. CV-10-0717-PHX-FJM ORDER

The court has before it plaintiff's motion to amend the complaint (doc. 36), defendants' response (doc. 43), the report and recommendation of the United States Magistrate Judge recommending that we deny the motion (doc. 45), plaintiff's objections to the report and recommendation (doc. 49), and defendants' reply (doc. 57). This matter has been pending for almost a year. On March 29, 2010, plaintiff filed a four count complaint pursuant to 42 U.S.C. § 1983 asserting that his constitutional rights were violated by his validation as a gang member and conditions of confinement in maximum security. On August 27, 2010, the court issued a scheduling order setting September 24, 2010, as the deadline to amend the complaint, and February 16, 2011, as the discovery cut-off date. Plaintiff's motion to amend the complaint was filed on December 15, 2010, three months after the deadline. Plaintiff seeks to amend his complaint in order to assert a First Amendment/RLUIPA claim regarding a religious diet--an entirely new cause

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of action. In addition, he seeks to add four new defendants. We agree with the Magistrate Judge's conclusion that adding a new claim and new defendants so late in this proceeding will unduly prejudice defendants and result in delay of the resolution of this case. Plaintiff acknowledgment that he has "studied Asatru for many years and has been `designated' within A.D.O.C. as Asatru for many years as his designated religious preference," (doc. 36, ex. 1 at 23) undermines any claim of excusable neglect. IT IS ORDERED ADOPTING the report and recommendation of the Magistrate Judge and DENYING plaintiff's motion to amend (doc. 36). DATED this 4th day of March, 2011.

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