Cooper v. Belt et al

Filing 22

MEMORANDUM AND ORDER signed by Judge Greg N. Stivers on 9/27/17; granting 14 Motion for Leave to Amend; granting 18 Motion for Extension of Time to Answer : Defendants have until 10/13/2017 to file their answer to the Complaint DN 1 and Amended Complaint DN 14 . cc: Counsel, Plaintiff(pro se)(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
MICHAEL COOPER
v.

PLAINTIFF
CIVIL ACTION NO. 5:17-CV-P30-GNS

TROY BELT et al.

DEFENDANTS
MEMORANDUM AND ORDER

Before the Court are the motion for leave to file an amended complaint (DN 14) filed by
pro se Plaintiff Michael Cooper and the motion for an extension of time in which to file an
answer filed by Defendants (DN 18). Each will be considered below.
Motion to amend (DN 14)
This motion, titled “Motion for Leave to File an Amended Complaint and Fix Errors
Herein,” appears to have been prompted by the Court’s Memorandum Opinion and Order on
initial review of Plaintiff’s complaint. In that Memorandum Opinion and Order, some of
Plaintiff’s claims were dismissed pursuant to 28 U.S.C. § 1915A. Plaintiff’s motion seeks to
explain further certain allegations regarding his retaliation claims for exercising his First
Amendment rights and add one of Defendants’ first names.
In response (DN 16), Defendants argue that Plaintiff’s motion is not one to amend the
complaint but one under Fed. R. Civ. P. 59(e) to alter or amend the judgment of the Court.
However, that Rule applies to final judgments, not unappealable interlocutory orders, like the
one at issue. Phillips v. Teamsters Local Union No. 957, No. 3-:05-CV-292, 2007 WL 397011,
at *1 (S.D. Ohio Jan. 31, 2007) (citing Fin. Servs. Corp. of the Midwest v. Weindruch, 764 F.2d
197, 198 (7th Cir. 1985); Morgan Guar. Tr. Co. of N.Y. v. Third Nat’l Bank of Hampden Cty.,
545 F.2d 758, 760 (1st Cir. 1976)). Thus, Rule 59(e) does not apply here.

On initial review, the Court allowed Plaintiff’s retaliation claims to go forward with the
exception of his claim against Defendant Beeler for retaliating after Plaintiff said that Defendant
Beeler could not read. Plaintiff’s motion does not concern the dismissed retaliation claim, but
rather claims that have been allowed to go forward.
The Court considers the motion to be one to amend the complaint. Under Fed. R. Civ. P.
15(a), “A party may amend its pleading once as a matter of course within: (A) 21 days after
serving it[.]” Accordingly,
Plaintiff’s motion (DN 14) is GRANTED.
The Clerk of Court is DIRECTED to change Defendant Pillion’s name to “Michael
Pillion.”
Motion for extension of time to file an answer (DN 18)
Defendants have asked for more time to file an answer. As reason, they state that counsel
has only recently been assigned this case and that the request is not intended to harass Plaintiff or
delay the proceedings. Defendants request until and including October 5, 2017, to answer.
Plaintiff opposes the extension (DN 21). He believes that Defendants were served with
the complaint on June 7, 2017, the date of the Court’s order allowing certain claims to go
forward. In point of fact, Defendants did not waive service until July 12, 2017, and their answer
was due September 11, 2017. The motion for extension of time to file an answer was filed
before the answer’s due date.
IT IS ORDERED that Defendants’ motion for an extension of time to file an answer
(DN 18) is GRANTED. In light of the fact that the Court has allowed the amendment of the
complaint, the Court will provide a greater extension than requested by Defendants to answer.
Accordingly,

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IT IS ORDERED that Defendants have until October 13, 2017, to file their answer to
the complaint (DN 1) and the amended complaint (DN 14).
Date:

September 27, 2017

Greg N. Stivers, Judge
United States District Court

cc:

Plaintiff, pro se
Counsel of record
4416.009

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