Miller v. Heil et al

Filing 85

ORDER. Ordered that Plaintiff's Second Motion for Leave to Amend his Complaint 69 is Granted. The Clerk of the Court is directed to accept for filing Plaintiff's Second Amended Complaint [69-1]. Ordered that Plaintiff's Motion for Pr eliminary Injunction and Brief in Support 22 is Denied without prejudice. Ordered that defendants' Motion to Dismiss 55 is Denied without prejudice. Ordered that the remaining motions 46 , 67 , 68 , 72 and 84 are Denied as moot by Magistrate Judge Boyd N. Boland on 08/05/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 10-cv-02913-WYD-BNB
CHRISTOPHER JON MILLER,
Plaintiff,
v.
MARGARET HEIL, in her official capacity as Program Administrator of the SOTMP and Chief
of Rehabilitation Programs,
RICHARD G. LINS, individual, and in his official capacity as SOTMP therapist, and litigation
coordinator,
CHRISTINA ORTIZ-MARQUEZ, individually, and in her official capacity as SOTMP therapist,
SAMUEL MICHAEL DUNLAP, in his official capacity as SOTMP Phase II Program
Coordinator,
BURL MCCULLAR, in his official capacity as SOTMP Program Manager,
ARISTEDES ZAVAR[A]S, in his official capacity as Executive Director,
CHRISTINE TYLER, individually, and in her official capacity as SOTMP therapist, and
JAYLYNNE CHUPP, in her official capacity as SOTMP therapist,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following motions:
1. Plaintiff’s Motion for Preliminary Injunction and Brief in Support [Doc. #22,
filed 02/28/2011] (the “Motion for Preliminary Injunction”);
2. Plaintiff’s Motion for Request to Permit Reply to Defendant’s [sic] Answer to
Preliminary Injunction and Brief in Support [Doc. #46, filed 04/29/2011];
3. Defendants’ Motion to Dismiss [Doc. #55, filed 05/18/2011] (the “Motion to
Dismiss”);
4. Plaintiff’s Motion for Leave to Exceed Page Limit [Doc. #67, filed 06/13/2011];

5. Plaintiff’s Motion for Leave to Amend Complaint [Doc. #68, filed 06/14/2011] (the
“First Motion to Amend”);
6. Plaintiff’s Second Motion for Leave to Amend His Complaint [Doc. #69, filed
06/13/2011] (the “Second Motion to Amend”);
7. Plaintiff’s Motion to Strike [Doc. #72, filed 06/14/2011);
8. Plaintiff’s Motion to Quash [Doc. #73, filed 06/14/2011]; and
9. Defendants’ Motion to Strike or in the Alternative Motion for Extension of Time
to Reply to Plaintiff’s Response to the Defendants’ Motion to Dismiss [Doc. #84, filed
08/02/2011].
The plaintiff filed his Prisoner Complaint on December 1, 2010 [Doc. #1] (the
“Complaint”). He filed a motion to amend the Complaint on March 18, 2011 [Doc. #28], which
was granted on April 7, 2011 [Doc. #33].
The defendants filed a Motion to Dismiss on May 18, 2011. The plaintiff now seeks
leave to again amend. He does not ask to add parties or claims; instead, he seeks to clarify his
existing claims based on the arguments made in the Motion to Dismiss. He states that “[t]his
will be Plaintiff’s final request for Leave to Amend.” Second Motion to Amend, ¶ 10.
Rule 15, Fed. R. Civ. P., provides that a complaint may be amended once as a matter of
right within 21 days after serving it or, “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.” Fed. R. Civ. P. 15(a)(1). “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.” Id. at 15(a)(2).

2

The plaintiff’s Amended Complaint was deposited in the prison’s internal legal mail
system on March 15, 2011.1 Amended Complaint, p. 64. The defendants served their Motion to
Dismiss on May 5, 2011. Motion to Dismiss, p. 16. The plaintiff’s request to amend the
Amended Complaint was deposited in the prison’s internal legal mail system on June 6, 2011,
Second Motion to Amend, p. 4, which is more than 21 days after the Amended Complaint was
filed and more than 21 days after service of the Motion to Dismiss. The defendants oppose the
plaintiff’s request to amend [Doc. #77]. Therefore, the plaintiff may amend his Amended
Complaint only with leave of court.
A motion to amend may be denied on the grounds of undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or
futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962).
Because the plaintiff states that he is revising his Amended Complaint in response to the
defendants’ first Motion to Dismiss, and because he represents that this is his final request for
leave to amend, I find that the proposed amendment is not the result of any undue delay, bad
faith or dilatory motive on the part of the plaintiff, or repeated failure to cure deficiencies by
amendments previously allowed. Nor does it appear that the amendment is futile or that it will
result in any undue prejudice to the opposing parties. Foman v. Davis, 371 U.S. 178, 182

1

The prison mailbox rule applies to an inmate’s filing of motions. Price v. Philpot, 420
F.3d 1158, 1164 (10th Cir. 2005). Under the mailbox rule, “an inmate who places a [motion] in
the prison’s internal mail system will be treated as having ‘filed’ that [motion] on the date it is
given to prison authorities for mailing to the court.” Id. at 1165. However, the inmate must
establish actual use of the prison’s internal mail system in order to be accorded the benefits of
the mailbox rule. Id.
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(1962). Accordingly, the plaintiff’s Second Motion to Amend is granted.
The plaintiff’s Motion for Preliminary Injunction and the defendants’ Motion to Dismiss
are not directed at the Second Amended Complaint. Therefore, those motions are denied without
prejudice.
The remaining motions are directed at issues presented by the Motion for Preliminary
Injunction or the Motion to Dismiss, or they are rendered moot by the filing of the Second
Amended Complaint. Therefore, the remaining motions are denied as moot.
IT IS ORDERED:
1. Plaintiff's Second Motion for Leave to Amend His Complaint [Doc. #69] is
GRANTED. The Clerk of the Court is directed to accept for filing Plaintiff’s Second Amended
Complaint [Doc. #69-1];
2. Plaintiff’s Motion for Preliminary Injunction and Brief in Support [Doc. #22] is
DENIED without prejudice;
3. The defendants’ Motion to Dismiss [Doc. #55] is DENIED without prejudice; and
4. The remaining motions [Docs. #46, #67, #68, #72, #73,and #84] are DENIED as
moot.
Dated August 5, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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