Smith et al V. Washington et al

Filing 9

ORDER granting 5 Motion to Amend/Correct; finding as moot 6 Motion to Amend/Correct; finding as moot 8 Motion to Amend/Correct. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK LEE SMITH, et al.,
Plaintiffs,
v.

Case No. 2:18-cv-10736
Honorable Victoria A. Roberts

HEIDI WASHINGTON, et al,
Defendants.
___________________________________/
ORDER GRANTING PLAINTIFFS’ INITIAL MOTION TO AMEND COMPLAINT
(5) AND DENYING HIS SUBSEQUENT MOTIONS TO AMEND AS MOOT (6
and 8)
Derrick Lee Smith, a state inmate, along with George Preston, Kathy
Preston, James Preston, Martin Preston, and Rachel Preston (“Plaintiffs”), all of
whom are proceeding without the assistance of counsel, filed a civil rights
complaint under 42 U.S.C. § 1983. This matter is before the Court for
consideration of Plaintiffs’ three nearly identical motions to amend complaint.
(ECF No. 5, 6 and 8.) For the reasons that follow, the first motion to amend is
GRANTED and the subsequent motions are DENIED AS MOOT.
I.

BACKGROUND
Plaintiffs filed their initial complaint on March 5, 2018, but failed to provide

a filing fee or application to proceed in forma pauperis. A deficiency notice was
issued on March 8, 2018 and Plaintiffs provided the appropriate application to

proceed in forma pauperis on March 27, 2018. The application was granted on
April 16, 2018. (ECF No. 7.)
In their first motion to amend, filed on April 12, 2018, Plaintiffs generally
seek leave of Court to “have the complaint be amended.” (ECF No. 5 at 1.)
There is no further explanation as to what the amendment will entail. Nor is there
a proposed amended complaint attached to the motion. The subsequent
motions, filed on April 18, 2018 and April 20, 2018, provide no additional
information and are nearly identical in substance to April 12, 2018 motion.
II.

STANDARD
Under Federal Rule of Civil Procedure 15(a), a party may amend its

pleadings in one of two ways. First, a party may amend as a matter of course
within 21 days after serving it or within 21 days of service of a responsive
pleading. Fed. R. Civ. P. 15(a)(1)(A)-(B). For amendments that fall outside of
those time periods, amendment to the pleadings may only be done after
obtaining leave of court. The Rule provides that the Court should freely give
leave for a party to amend its pleading “when justice so requires.” Fed. R. Civ. P.
15(a)(2).
In addition, the Local Rules of the Eastern District of Michigan require a
party moving to amend a pleading to “attach the proposed amended pleading to
the motion.” E.D. Mich. LR 15.1. Any amendment to a pleading must “reproduce
the entire pleading as amended, and may not incorporate any prior pleading by

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reference.” Id. Failure to comply with Rule 15.1, however, is “not grounds for
denial of the motion.” Id.
III.

ANALYSIS
Here, Plaintiffs fall within the dictates of Rule 15(a)(1)(A). The complaint

has not yet been served upon Defendants. Therefore, they are entitled to amend
as of right and the April 12, 2018 motion is GRANTED. (ECF No. 5.) However,
Plaintiffs have failed to describe what changes are to be made, or to provide a
copy of the proposed amended complaint. Accordingly, Plaintiffs are ORDERED
to file an amended complaint within THIRTY DAYS OF THE DATE OF THIS
ORDER. The amended complaint must reproduce the entire pleading and may
not incorporate the prior pleading by reference. When the Court receives the
complaint, it will be subject to screening pursuant to 28 U.S.C. § 1915(e)(2)(B).
Plaintiffs’ subsequently filed motions are accordingly DENIED AS MOOT. (ECF
No. 6 and 8.)
IT IS SO ORDERED.

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

Dated:April 27, 2018

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