Claice v. Colo Doc. CSP.

Filing 36

MINUTE ORDER granting in part and denying in part 33 Motion to Amend Complaint and Memorandum/Response. The Clerk of the Court shall indicate on the docket that document # 33 is the Response to Defendants' Motion to Dismiss [#28]. Defendants shall file a Reply on or before 10/28/2013. By Magistrate Judge Kristen L. Mix on 10/11/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01074-MSK-KLM
JOHN A. CLAICE,
Plaintiff,
v.
VANGELDER, CSP Lt., Unit L7, and
NERESON, CSP. CO., Unit CO,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Amend Complaint and
Memorandum/Response [Docket No. 33; Filed October 3, 2013] (the “Motion”). In the
Motion, Plaintiff seeks to amend his Amended Complaint [#15] to insert claims against
Defendants in their official capacities as well as in their individual capacities. Plaintiff also
asks the Court to appoint him counsel in this matter. Finally, Plaintiff includes a Response
to Defendants’ pending Motion to Dismiss [#28].
IT IS HEREBY ORDERED that the Motion [#33] is GRANTED in part and DENIED
without prejudice in part. To the extent that Plaintiff seeks to assert claims against
Defendants in both their official and individual capacities, the Court notes that it must
construe Plaintiff’s filings liberally because he is not represented by an attorney. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). Indeed, examining Defendants’ Motion to Dismiss [#28], Defendants have
already interpreted Plaintiff’s Amended Complaint [#15] as being asserted against them in
both their official and individual capacities. Accordingly, to the extent that Plaintiff seeks
this to be made explicit, the Motion is granted.
However, to the extent that Plaintiff seeks appointment of counsel, the Motion is
denied without prejudice. Plaintiff appears to make no argument on this point and,
regardless, is in violation of Local Rule 7.1C., which states that, “A motion shall not be
included in a response or reply to the original motion. A motion shall be made in a separate
paper.” Pro se litigants must follow the same procedural rules that govern other litigants.
See Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Plaintiff may file a separate
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motion seeking appointment of counsel if he so chooses. The Court accepts the Motion
[#33] as Plaintiff’s Response to Defendants’ Motion to Dismiss [#28]. Accordingly,
IT IS FURTHER ORDERED that the Clerk of the Court shall indicate on the docket
that document #33 is the Response to Defendants’ Motion to Dismiss [#28]. Defendants
shall file a Reply on or before October 28, 2013.

Dated: October 11, 2013

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