Coad v. Waters et al

Filing 39

ORDER denying without prejudice 36 Motion to Amend; denying 37 Motion to Appoint Counsel ; denying without prejudice 22 Motion to Amend. By Magistrate Judge Craig B. Shaffer on 11/10/2011. (Attachments: # 1 copy of unpublished case) (cbslc1)

Page 1
Not Reported in F.Supp.2d, 2006 WL 3833938 (D.Colo.)
(Cite as: 2006 WL 3833938 (D.Colo.))

Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Kevin Lavent BROWN, Plaintiff,
v.
H.S.A. Sandy HARRIS, et al., Defendants.
No. Civ.A. 05-CV-02203-WD.
Dec. 28, 2006.
Kevin Lavent Brown, Canon City, CO, pro se.
Alisha M. Burris, Colorado Department of Law,
Denver, CO, for Defendants.
ORDER ON RECOMMENDATION AND ORDER
OF MAGISTRATE JUDGE
MILLER, J.
*1 This case is before me on (1) the Recommendation of United States Magistrate Judge Boyd
N. Boland filed June 27, 2006 (Docket No. 46) that
the Permission to File Motion for Supplemental
Pleadings (Docket No. 41) and Motion for Supplemental Pleadings (Docket No. 44) be denied as
moot; and (2) the Order of United States Magistrate
Judge Boyd N. Boland filed November 17, 2006
(Docket No. 69), denying Plaintiff's Motion for
Supplemental Pleadings (Docket No. 67) without
prejudice. For the reasons set forth below, the recommendation and order are accepted as modified
pursuant to this order.
1. June 27, 2006 Recommendation (Docket No. 46)
Plaintiff filed two documents (Permission to
File a Motion for Supplemental Pleadings [Docket
No. 41]; Motion for Supplemental Pleadings
[Docket No. 44] ) (collectively, “First Motion to
Supplement”), seeking to supplement his complaint
by adding allegations concerning events occurring
just before and after the filing of this action in
November 2005. Magistrate Judge Boland recommended that the First Motion be denied as moot be-

cause of a previously filed recommendation that the
case be dismissed in its entirety (see Recommendation filed June 27, 2006). Plaintiff did not file a
timely objection to the recommendation and is
therefore not entitled to de novo review. See 28
U.S.C. § 636(b)(1). I have reviewed the file and the
recommendation. I accept the recommendation but
for different reasons than those set forth by Magistrate Judge Boland.
In my order dated September 29, 2006 (Docket
No. 53), I accepted only part of the recommendation to dismiss; accordingly, the motion to supplement is not moot on this basis. However, I note that
Plaintiff filed a Motion for Supplemental Pleadings
on November 17, 2006 (Docket No. 69), again
seeking to supplement the allegations in the complaint (“Second Motion to Supplement”). The
Second Motion to Supplement contains identical allegations as the First Motion to Supplement, but
also includes allegations of more recent events. I
deem the First Motion to Supplement to be abandoned or superseded by Plaintiff's second motion.
Accordingly, I agree that the First Motion to Supplement should be denied as moot.
2. November 17, 2006 Order (Docket No. 69)
In the Second Motion to Supplement, Plaintiff
purported to supplement his complaint by adding
allegations concerning events occurring from October 5, 2005 to November 7, 2006 and asserting another claim for violations of his Eighth Amendment
rights. Magistrate Judge Boland construed the document as an effort to amend the complaint and
denied the motion without prejudice, ordering
Plaintiff to seek leave to file an amended complaint, to detail the proposed amendment and reasons why the amendments are necessary, and to attach a proposed amended complaint in an approved
form. Plaintiff filed a timely objection to the order,
asserting that he sought to supplement his complaint pursuant to Fed.R.Civ.P. 15(d), not amend.
For the reasons set forth below, I affirm the order.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Not Reported in F.Supp.2d, 2006 WL 3833938 (D.Colo.)
(Cite as: 2006 WL 3833938 (D.Colo.))

*2 Pursuant to Rule 72 of the Federal Rules of
Civil Procedure, I shall modify or set aside any portion of Magistrate Judge Boland's order found to be
clearly erroneous or contrary to law. I have reviewed the motion, the complaint, the order, and
other pleadings in the record. The Second Motion
to Supplement includes allegations that both precede and follow the filing of the original complaint
in this action; therefore, it can properly be considered a motion to amend and to supplement the
complaint. I agree with Magistrate Judge Boland
that Plaintiff is required to file a motion pursuant to
Fed.R.Civ.P. 15(a) and (d), providing an explanation for why amendment/supplementation is necessary and attaching a proposed new complaint. Since
a responsive pleading has been filed, Plaintiff may
only amend his complaint upon leave of the court.
Fed.R.Civ.P. 15(a). Similarly, Rule 15(d) permits
supplementation of a pleading only upon motion of
a party and reasonable notice.
I also agree with Magistrate Judge Boland that
the plaintiff may not simply file piecemeal amendments and supplements to his complaint. Rule 15
permits supplemental pleadings “upon such terms
as are just.” I conclude that it is entirely appropriate
to require Plaintiff to set forth all of his original and
supplemental allegations and claims in a single document. Walker v. United Parcel Service, Inc., 240
F.3d 1268, 1278 (10th Cir.2001) (“Rule 15(d) gives
trial courts broad discretion to permit a party to
serve a supplemental pleading setting forth postcomplaint transactions, occurrences or events.”)
Magistrate Judge Boland's order is not contrary to
law or clearly erroneous. Accordingly, it is ordered:
1. The recommendation filed June 27, 2006
(Docket No. 46) is accepted as modified.
2. Plaintiff's Permission to File a Motion for Supplemental Pleadings (Docket No. 41) and Motion
for Supplemental Pleadings (Docket No. 44) are
denied as moot.
3. The Order filed November 17, 2006 (Docket
No. 69) is affirmed.

4. Plaintiff may move to file an amended complaint. The motion should explain any proposed
amendments or supplements, explain why such
changes are necessary, and include a proposed
amended complaint in an approved form, entitled
“Amended Complaint” setting forth all of his allegations and claims in this case.
DATED at Denver, Colorado, on December 27,
2006.
RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
BOLAND, Magistrate J.
This matter is before me on the following papers (the ‘Papers”) filed by the plaintiff:
(1) Permission to File a Motion for Supplemental Pleadings [Doc. # 41, filed 5/16/06], and
(2) Motion for Supplemental Pleadings [Doc. #
44, filed 6/20/06].
The plaintiff seeks to amend his Complaint to
assert additional claims against certain defendants.
Separately, I have recommended that this case be
dismissed in its entirety based on Eleventh Amendment immunity and the plaintiff's failure to exhaust
administrative remedies. The plaintiff's proposed
amendments do not cure these defects. Accordingly, I respectfully RECOMMEND that the relief
requested in the Papers be DENIED AS MOOT.
*3 FURTHER, IT IS ORDERED that pursuant
to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)
, the parties have 10 days after service of this recommendation to serve and file specific, written
objections. A party's failure to serve and file specific, written objections waives de novo review of the
recommendation by the district judge, Fed.R.Civ.P.
72(b); Thomas v. Arn, 474 U.S. 140, 147-48, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985), and also waives
appellate review of both factual and legal questions.
In re Key Energy Resources Inc., 230 F.3d 1197,
th
1199-1200 (10 Cir.2000). A party's objections to
this recommendation must be both timely and spe-

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Not Reported in F.Supp.2d, 2006 WL 3833938 (D.Colo.)
(Cite as: 2006 WL 3833938 (D.Colo.))

cific to preserve an issue for de novo review by the
district court or for appellate review. United States
v. One Parcel of Real Property, 73 F.3d 1057, 1060
th
(10 Cir.1996).
D.Colo.,2006.
Brown v. Harris
Not Reported in F.Supp.2d, 2006 WL 3833938
(D.Colo.)
END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.