Birman v. Berkebile et al

Filing 38

ORDER denying without prejudice 29 Motion for Permission to Amend Civil Right Complaint to Include Additional Defendant; denying 31 Motion for Default Judgment. By Magistrate Judge Kristen L. Mix on 9/25/2014. (Attachments: # 1 Attachment 1)(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00376-KLM
MICHAEL Y. BIRMAN,
Plaintiff,
v.
D. BERKEBILE, Warden,
MR. KIANG, ADX Pharmacist “LT” Commander, and
MR. CORDOVA, Health Service Supervisor,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Court’s Order to Show Cause [#26],1 on
Plaintiff’s Motion for Permission to Amend Civil Right[s] Complaint to Include
Additional Defendant [#29] (the “Motion to Amend”), on Plaintiff’s various Letters [#30,
#36], on Plaintiff’s Motion for Judgment by Default and/or Motion for Mandamus Relief
[#31] (the “Motion for Default”), and on the various Responses [#28, #32, #33] and Reply
[#35] to these filings.2
The Order to Show Cause [#26] directed Defendants to show cause why this Court

1

“[#26]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

This case was assigned to the undersigned on May 8, 2014, for all purposes pursuant to
the Court’s Pilot Program and 28 U.S.C. § 636(c). [#24].

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should not enter default against them because they had not filed an answer or other
response to Plaintiff’s Complaint [#1]. Defendants timely responded to the Order to Show
Cause and have now responded to the Complaint. Response to Order to Show Cause
[#28]; Answer [#27]. They assert that their failure to timely file an answer was “due to a
mistake and was not intended to delay the prosecution of this matter or to prejudice
Plaintiff.” Response to Order to Show Cause [#28] at 2. Given Defendants’ explanation
and acknowledgment of their mistake, and the Tenth Circuit’s preference for resolving
cases on the merits, the Court accepts Defendants’ Answer [#27] for filing, and the Order
to Show Cause [#26] is discharged. See Lee v. Max Int’l, LLC, 638 F.3d 1318, 1319 (10th
Cir. 2011) (“Our justice system has a strong preference for resolving cases on their merits
whenever possible . . . .”). Accordingly, Plaintiff’s Motion for Default [#31] based on
Defendants’ failure to timely file an answer or other response to the Complaint is denied.
Plaintiff has filed various Letters [#30, #36] on the docket. Plaintiff is hereby warned
that the Court does not respond to Letters. Rather, Plaintiff must file motions, titled as
motions, if he seeks relief of any kind from the Court. Further, it is not the job of the Court
or the Clerk of Court to provide copies of the docket or old filings to Plaintiff. However, as
a one time courtesy to Plaintiff, the Clerk of Court shall send to Plaintiff a copy of the
electronic docket and of Plaintiff’s Complaint, as he requests in one of the Letters [#36].
A letter from the Court more fully explaining Plaintiff’s responsibilities as an incarerated pro
se litigant is attached to this Order.
In the Motion to Amend [#29], Plaintiff seeks to add as a defendant Dr. David Allred
and to clarify that he is bringing suit against Defendants in both their official and individual

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capacities. 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)). Here, Defendants argue that the proposed amendment is futile and that the
Motion to Amend should be denied on that basis.
However, Plaintiff does not include a proposed amended complaint for the Court’s
and Defendants’ review. If Plaintiff, who proceeds in this matter pro se, is seeking leave
to file an amended complaint, he must file a motion which complies with the federal and
local rules, namely, Fed. R. Civ. P. 15, and which includes the proposed amended
complaint as a document separate from the motion. The Court will not permit piecemeal
adjudication of Plaintiff’s case. Thus, Plaintiff must include all claims he seeks to bring and
defendants he intends to name in the proposed amended complaint.3 Furthermore, Plaintiff
must use the form complaint prescribed by this Court. D.C.COLO.LCivR 5.1(c). Therefore,
the Motion [#29] is denied without prejudice.
3

Although the Court makes no comment on the sufficiency of Plaintiff’s current Complaint
[#1], the Court reminds Plaintiff that, in order to state a claim in federal court, Plaintiff must explain
“what each defendant did to him, when each defendant did it, how each defendant's action harmed
him, what specific legal right each defendant violated, and what remedy he seeks for each
violation.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007);
Lazarov v. Kimmel, No. 10-cv-01238-CMA, 2010 WL 2301749 (D. Colo. June 8, 2010)). If Plaintiff
chooses to file a motion seeking leave to file an amended complaint along with a proposed
amended complaint, he may include amendments that comply with the Nasious requirements
above.

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Based on the foregoing,
IT IS HEREBY ORDERED that Defendants’ Answer [#27] is accepted as of the date
of its filing on August 6, 2014.
IT IS FURTHER ORDERED that the Order to Show Cause [#26] is DISCHARGED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Default [#31] is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to Plaintiff hard copies
of the electronic docket and of Plaintiff’s Complaint [#1].
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend [#29] is DENIED
without prejudice.
IT IS FURTHER ORDERED that the Clerk of the Court is directed to mail a copy of
the pro se prisoner forms to Plaintiff.
IT IS FURTHER ORDERED that, if he so chooses, Plaintiff shall file a motion
seeking leave to file an amended complaint along with a proposed amended complaint on
or before October 20, 2014.

Dated: September 25, 2014

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