Carbajal v. Warner et al

Filing 245

ORDER. The Motion 236 is DENIED WITHOUT PREJUDICE and that the Third Amended Complaint 243 is STRICKEN. Plaintiff may make one final attempt to file anappropriate amended complaint, accompanied by a motion for leave to amend, no later than 1/21/2012. The Scheduling Conference set for 1/5/2012 at 10:30 a.m. is VACATED and, if necessary, will be reset at a later date. By Magistrate Judge Kristen L. Mix on 12/21/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
MYRL SERRA, in his individual capacity,
SHERRI PRICE, in her individual capacity,
CAROL WARNER, in her individual capacity,
RICHARD MAHAR, in his individual capacity,
DAVID ROMERO, in his individual capacity,
JOE QUINTANA, in his individual capacity,
BILL RAILEY, in his individual capacity,
CHRIS WELDON, in his individual capacity,
TIMOTHY HATCH, in his individual capacity,
BEA WOLFE, in his individual capacity,
BENJAMIN SCHROEDER, in his individual capacity,
GILBERTO LUCIO, in his individual capacity,
LAURIE FREUND, in her individual capacity,
JAMES DIXON, in his individual capacity,
ADAM BARRETT, in his individual capacity,
PERRY SPEERMAN, in his individual capacity,
JOEL SMITH, in his individual capacity,
ABBEGAYLE DORN, in her individual capacity,
JESSE REMBERT, in his individual capacity,
JAY LOPEZ, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity,
BRYAN O’NEILL, in his individual capacity,
JEFFREY WATTS, in his individual capacity, and
ED GRUNINGER, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave to File Third
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Amended Complaint [Docket No. 236; Filed November 14, 2011] (the “Motion”). For the
reasons set forth below, the Court DENIES WITHOUT PREJUDICE the Motion.
On October 19, 2011, the District Judge issued an Order Adopting in Part and
Rejecting in Part Recommendation of United States Magistrate Judge [#229] in connection
with a number of Motions to Dismiss filed by Defendants in this matter. As part of the
Order [#229], the District Judge permitted Plaintiff to file a Third Amended Complaint no
later than November 15, 2011. See Order [#229] at 10. The District Judge also ordered
that any third amended complaint filed by Plaintiff must comply with a number of listed
conditions. See id. at 10-11. He further warned Plaintiff that any third amended complaint
filed by Plaintiff that did not so comply would be stricken and that sanctions could be
imposed, including dismissal of this case. See id. at 11-12.
On November 14, 2011, Plaintiff filed this Motion [#236], which included a copy of
his proposed Third Amended Complaint. That same day, the District Judge issued another
Order [#235] in response to Plaintiff’s Motion for Clarification [#234]. In the Order, the
District Judge amended some of the conditions set forth in his previous Order [#229].
Thus, the Court compares the proffered Third Amended Complaint1 [#243] with the
requirements set forth by the District Judge in both Orders [#229, #235].
Upon close comparison of the Third Amended Complaint [#243] and Orders [#229,
#235], the Court finds that Plaintiff’s Third Amended Complaint is compliant with the District

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Plaintiff filed a Third Amended Complaint as part of his Motion [#236] on November 14,
2011, in order to be compliant with the Court’s Order [#229] that he file his Third Amended
Complaint no later than November 15, 2011. On November 14, 2011, the District Judge also ruled
on Plaintiff’s Motion for Clarification [#234], filed on November 1, 2011, allowing him to file his
proposed Third Amended Complaint by December 6, 2011. See Order [#235] at 5.

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Judge’s requirements except in one respect. The District Judge dismissed with prejudice
“all claims asserted against individual defendants in their official capacities.”2 See Order
[#229] at 9. Plaintiff’s proposed Third Amended Complaint pursues claims against sixteen
individual Defendants in their official capacities. Thus, the Third Amended Complaint fails
to comply with the requirements of the Order [#229]. The District Judge warned Plaintiff
that any proposed Third Amended Complaint filed by him would be stricken if it did not
comply with the requirements set forth in the Orders [#229, #235]. Because Plaintiff’s Third
Amended Complaint does not comply in full with the Orders,
IT IS HEREBY ORDERED that the Motion [#236] is DENIED WITHOUT
PREJUDICE and that the Third Amended Complaint [#243] is STRICKEN.
IT IS FURTHER ORDERED that Plaintiff may make one final attempt to file an
appropriate amended complaint, accompanied by a motion for leave to amend, no later
than January 21, 2012.
IT IS FURTHER ORDERED that the Scheduling Conference set for January 5, 2012
at 10:30 a.m. is VACATED and, if necessary, will be reset at a later date.
Dated: December 21, 2011

2

This portion of the District Judge’s Order [#229] essentially rejected the portions of the
Recommendation [#198], Supplement [#202], and Second Supplement [#207] that permitted
Plaintiff to reassert his claims against any individuals in their official capacities. Thus, the caption
and text of the Third Amended Complaint must be further amended to remove claims against
individuals in their official capacities.

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