Martin v. City and County of Denver

Filing 46

ORDER re: 35 Plaintiff's opposed Motion for Leave to File Second Amended Complaint. Plaintiff's proposed Second Amended Complaint [#35-1] is accepted for filing as of the date of this Order. Plaintiff shall serve any new Defendants and shall file proof of such service on or before 3/18/2013. Any Defendant that has already entered an appearance in this matter shall file an answer or other responsive pleading to Plaintiff's Second Amended Complaint on or before 4/1/2013. By Magistrate Judge Kristen L. Mix on 2/14/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01376-PAB-KLM
FREDDIE K. MARTIN,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
DENNIS J. GALLAGHER, Office of the Auditor, in his Official Capacity,
AUDIT SERVICES OF AUDITOR’S OFFICE, and
CAREER SERVICE AUTHORITY,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s opposed Motion for Leave to File
Second Amended Complaint [Docket No. 35; Filed December 12, 2012] (the “Motion”).
On January 7, 2013, Defendants filed a Response [#40]. On January 22, 2013, Plaintiff
filed a Reply [#44]. The Motion is thus ripe for resolution.
Plaintiff is seeking leave to file a Second Amended Complaint.

Defendants

recognize that Plaintiff proceeds in this matter as a pro se litigant and that leave to amend
his pleadings should be freely given when timely requested, as Plaintiff has done here.
Response [#40] at 3. However, they argue that the greatest problems with Plaintiff’s
proposed Second Amended Complaint are a lack of clarity regarding which claims are
brought against which Defendants and that several additions to his proposed Second
Amended Complaint are futile. See id. at 4.
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When considering Plaintiff’s filings, the Court is mindful that it must construe the
filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be a pro
se litigant’s advocate, nor should the Court “supply additional factual allegations to round
out [a pro se litigant’s] complaint or construct a legal theory on [his] behalf.” Whitney v.
New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In
addition, Plaintiff, as a pro se litigant, must follow the same procedural rules that govern
other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The Court has discretion to grant a party leave to amend his pleadings. Foman v.
Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) (“The court should freely give
leave when justice so requires.”). “In the absence of any apparent or declared reason –
such as 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, futility of the amendment, etc. – the leave
sought should, as the rules require, be ‘freely given.’” Id. (quoting Fed. R. Civ. P. 15(a)(2)).
Potential prejudice to a defendant is the most important factor in considering whether a
plaintiff should be permitted to amend its complaint. Minter v. Prime Equip. Co., 451 F.3d
1196, 1207 (10th Cir. 2006). “Courts typically find prejudice only when the [proposed]
amendment unfairly affects the defendants in terms of preparing their defense to [claims
asserted in the] amendment.” Id. (quotation omitted).
This is the third attempt by Plaintiff to file a Second Amended Complaint. The Court
denied his first attempt because he failed to provide a complete proposed Second
Amended Complaint with his motion. See Minute Order [#27]. The Court denied Plaintiff’s
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second attempt because of the marked lack of clarity in his proposed document. See
Order [#34]. The present proposed document is a great improvement over Plaintiff’s last
attempt. Although the Court agrees with Defendants that Plaintiff’s proposed Second
Amended Complaint is still not a model of clarity, the Court finds that the document should
be accepted for filing. Plaintiff has explicitly stated which Defendant he is suing for most
of his claims; Defendants should assume that any claim where a particular Defendant is
not specified is brought against all Defendants. See, e.g., Martinez v. City & Cnty. of
Denver, No. 11-cv-00102-MSK-KLM, 2012 WL 4097298, at *4 (D. Colo. Sept. 18, 2012)
(construing complaint to allege that claim that did not define which of the defendants it was
brought against was actually brought against all of the defendants); Zhu v. Fed. Housing
Fin. Bd., 389 F. Supp. 2d 1253, 1267 n.6 (D. Kan. 2005) (same). Further, Defendants
should address each claim brought by Plaintiff, even if there appears to be more than one
cause of action related to each count. The Court finds that Defendants shall not suffer any
undue prejudice by being required to do so. See Minter, 451 F.3d at 1207. Finally,
Defendants assert that adding certain claims against certain Defendants and proposed
Defendants in their individual and/or official capacities is futile. It may be true that some
of Plaintiff’s claims against some Defendants in some capacities will not withstand motions
to dismiss. However, at this exceedingly early stage of the litigation and considering
Plaintiff’s pro se status, the Court finds that such issues are better developed in the context
of dispositive motions and/or discovery. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s proposed Second Amended Complaint
[#35-1] is accepted for filing as of the date of this Order.
IT IS FURTHER ORDERED that Plaintiff shall serve any new Defendants and shall
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file proof of such service on or before March 18, 2013.
IT IS FURTHER ORDERED that any Defendant that has already entered an
appearance in this matter shall file an answer or other responsive pleading to Plaintiff’s
Second Amended Complaint on or before April 1, 2013.

Dated: February 14, 2013

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