Sims v. Collins et al

Filing 78

ORDER striking 77 Proposed Amended Prisoner Complaint filed by Dustin Sims. By Magistrate Judge Kathleen M. Tafoya on 6/24/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–03249–MSK–KMT

DUSTIN SIMS,
Plaintiff,
v.
JOSHUA HAMMACK,
Defendant.

ORDER

This matter is before the court on Plaintiff’s amended Prisoner Complaint (Doc. No. 77,
filed June 20, 2013).
It appears Plaintiff wants to amend his complaint to add additional defendants and
possible additional claims. The Federal Rules of Civil Procedure provide that a party may
amend a pleading by leave of court, and that leave shall be given freely when justice so requires.
Fed. R. Civ. P. 15(a). Although the federal rules permit and require liberal construction and
amendment of pleadings, the rules do not grant the parties unlimited rights of amendment. 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). Additionally, a plaintiff may amend his
pleading once as a matter of course within 21 days after serving it or 21 days after service of a

responsive pleading or motion under 12(b), (e), or (f). See Fed. R. Civ. P. 15(a)(1). In all other
cases, a plaintiff may amend his complaint only with the opposing party’s written consent or the
court’s leave.
Here, there is no indication Plaintiff has received the consent of Defendant to file his
amended complaint, and the court has not granted leave to amend. Therefore, Plaintiff must file
a motion to amend his complaint. When seeking leave of the court to amend a complaint, the
motion to amend must detail the proposed amendments and the reasons why such amendments
are necessary. In addition, the plaintiff must attach the proposed amended complaint to the
motion. The proposed amended complaint must stand alone; it must contain all of the plaintiff’s
claims.
Therefore, it is
ORDERED that Plaintiff’s proposed amended prisoner complaint (Doc. No. 77) is
STRICKEN.
Dated this 24th day of June, 2013.

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