Szydlek v. Curtin

Filing 36

ORDER Granting Petitioner's 27 Motion to Amend Petition; Deeming Amended Petition Filed; and Denying Petitioner's 28 Motion to Extend Time as Moot. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JASON SZYDLEK,
Plaintiff,

Case No. 12-cv-14670
Hon. Matthew F. Leitman

v.
JEFFREY LARSON,
Respondent.
_________________________________/
ORDER GRANTING PETITIONER’S MOTION TO AMEND PETITION
(ECF #27); DEEMING AMENDED PETITION FILED; AND DENYING
PETITIONER’S MOTION TO EXTEND TIME AS MOOT (ECF #28)
Petitioner, Jason Szydlek, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (the “Original Petition,” ECF #1). Respondent filed an answer
to the petition on February 21, 2014 (the “Answer,” ECF #23). Before the Court
are two motions: (1) Petitioner's motion to file an amended petition (the “Motion to
Amend,” ECF #27), and (2) Petitioner’s motion for an extension of time to file a
reply (the “Motion for Extension of Time,” ECF #28).
A party who moves to amend a pleading “shall attach the proposed amended
pleading to the motion.” E.D. Mich. L.R. 15.1. Petitioner did not attach the
proposed amended pleading to his Motion to Amend. However, the Motion to
Amend supplements Petitioner’s claims in the Original Petition with additional
arguments and also presents what appears to be a newly-exhausted claim regarding

an alleged denial of access to the courts. The Court will therefore (1) construe the
Motion to Amend as the proposed amended pleading, and (2) deem the proposed
amended pleading to incorporate the Original Petition by reference.
Federal Rule of Civil Procedure 15 provides that the Court should freely
allow a party to amend a pleading when justice so requires. Fed. R. Civ. P.
15(a)(2). This standard is satisfied here. As noted above, the Motion to Amend
contains what appears to be a claim that Petitioner exhausted after the filing of his
Original Petition. Moreover, Respondent has not filed a response to the Motion to
Amend, and the Court finds that Respondent will not be unduly prejudiced by
allowing Petitioner to amend the Original Petition.
Accordingly, the Court GRANTS Petitioner’s Motion to Amend (ECF #27).
The Court deems Petitioner’s Amended Petition to have been filed as of the date of
this Order.

Petitioner therefore need not re-file an amended pleading.

For

purposes of this action, the Amended Petition shall be deemed to include the
claims asserted in (1) the Original Petition (ECF #1 at Pg. ID 1-473), and (2) the
Motion to Amend (ECF #27, Pg. ID 1554-1883). To be clear, all claims asserted
in the Original Petition and the Motion to Amend are before the Court in a single
Amended Petition.

Respondent may file an amended responsive pleading, along with any
additional relevant state court records, by no later than May 4, 2015. Respondent
need not repeat arguments it made in its Answer. In its amended responsive
pleading, Respondent should address only those arguments and claims that
Petitioner raised for the first time in the Motion to Amend. Petitioner may file a
reply brief within thirty (30) days after the amended responsive pleading is filed.
Finally, the Court DENIES Petitioner’s Motion for Extension of Time (ECF
#28) as moot.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: March 5, 2015

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 5, 2015, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]