Leventhal v. Tomford et al

Filing 39

ORDER denying 19 Motion to Alter/Amend/Supplement Pleadings(Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 8/17/2018. (LCC) cc: Howard E. Leventhal. Modified text on 8/17/2018 (MMP).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Howard E. Leventhal.,

Case No. 0:18-cv-320-PAM-KMM

Plaintiff,
ORDER

v.
Travis Tomford et al.;
Defendants.

Howard E. Leventhal, # 46376-424, Federal Prison Camp, P.O. Box 1000, Duluth,
MN 55814, pro se.

Mr. Leventhal has filed a “Memorandum of Law Regarding Capacity of
Defendants, and Request for Additional Service.” (ECF No. 19.) Because Mr.
Leventhal seeks to add additional defendants, the Court interprets this request as a
motion to file a second amended complaint. For the following reasons, Mr.
Leventhal’s motion is DENIED WITHOUT PREJUDICE.
BACKGROUND AND PROCEDURE
Mr. Leventhal filed his original complaint on February 5, 2018 (ECF No. 1),
and amended his complaint once as a matter of right pursuant to Federal Rule of Civil
Procedure 15 on May 31, 2018. (ECF No. 10.) Service of process has now been
largely completed. (See ECF Nos. 33, 34.) On June 25, 2018, Mr. Leventhal made a
motion to amend his complaint again. (ECF No. 19.) Mr. Leventhal did not submit a
proposed second amended complaint with his motion. Instead, he submitted four
names of individuals whom he wishes to add as defendants. (Id.) He also did not
include any specific allegations against these individuals. Because there are no
allegations listed, and because Mr. Leventhal has not provided a proposed second
amended complaint, his pleadings do not meet the procedural requirements of Rule
15 of the Federal Rules of Civil Procedure and Local Rule 15.1.
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ANALYSIS
Plaintiffs may amend pleadings once as a matter of right, but after that require
the court’s leave to do so again. Fed. R. Civ. P. 15. The court should freely give leave
when justice so requires. Id. However, denial of leave to amend is fully within the
discretion of the court, particularly when the proposed amendment would be futile.
United Steelworkers of America, AFL-CIO v. Mesker Bros. Industries, Inc., 457 F.2d 91, 93
(8th Cir. 1972) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). If the amendment
would not survive a motion to dismiss, then that amendment is futile. De Roche v. All
Am. Bottling Corp., 38 F. Supp. 2d 1102, 1106 (D. Minn. 1996). In order to avoid
dismissal, a complaint must allege enough facts for a claim for relief to be “plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Here, Mr. Leventhal has failed to provide the Court with a proposed
amendment that is cognizable as such. Local Rule 15.1(b)(1) requires that a motion to
amend be accompanied by a copy of the proposed amended pleading. 1 Furthermore,
that amended pleading “must be complete in itself and must not incorporate by
reference any prior pleading.” Local Rule 15.1(a). Mr. Leventhal’s Motion is not
accompanied by a proposed second amended complaint. Instead, Mr. Leventhal
simply identifies four additional defendants that he would like to add to the current
action, and reiterates that his lawsuit is a Bivens action. (ECF No. 19 at 1.) Even if the
Court could accept a non-compliant request to amend in light of Mr. Leventhal’s
status as a pro se complainant, he has not detailed in any way what allegations he
seeks to add. For both reasons, his motion to amend must be denied.
Mr. Leventhal has also filed several additional documents: a “Memorandum to
the Record Regarding Elder Inmate Abuse by Defendant Dr. Rice,” (ECF No. 20),
and two declarations of fellow inmates, which appear to contain communication with
Duluth FPC health professionals. (ECF Nos. 21–22.) The purpose of these
documents is unclear. If Mr. Leventhal hoped that these could serve as an amended
Rule 15.1(b)(2) also requires “a version of the proposed amended pleading that
shows—through redlining, underlining, strikeouts, or other similarly effective
typographic methods—how the proposed amended pleading differs from the
operative pleading.” The Court would waive this requirement in the interest of
practicality and justice, because Mr. Leventhal is a prisoner, and is unlikely to have
access to sufficient word processing software to easily prepare a redlined version.

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complaint, they cannot. Not only would this place an undue burden on the Court and
the defendants to construct a complaint for Mr. Leventhal, but the Court is unable to
discern any clear cause of action from these documents. Although as a pro se litigant
Mr. Leventhal is held to a “less stringent standard[]” regarding the idiosyncrasies of
federal civil procedure, Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)), he must still submit a
complaint that gives the defendants notice of the allegations against them. See Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004). Because he has not done so here, the Court
cannot grant Mr. Leventhal’s motion to amend based on this filing.
If Mr. Leventhal chooses to request leave to amend his complaint again, he
should ensure that his proposed amended complaint comports with the requirements
of Federal Rule of Procedure 8(a)(2), and contains “a short and plain statement of the
claim showing that [he] is entitled to relief.” Id. This requirement ensures that each
individual defendant understands the claim against him. See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). In a § 1983 case, the complaint must include “direct or
inferential allegations” of facts which, if true, would support each element necessary
for Mr. Leventhal to obtain relief via his chosen legal theory. Brooks v. Roy, 776 F.3d
957, 960 (8th Cir. 2015) (quoting Randall v. Scott, 610 F.3d 701, 707 n.2 (11th Cir.
2010)). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 55 U.S. at 555); see also Brooks, 776 F.3d at 960–961 (finding that a pro
se inmate’s § 1983 claim was not adequately alleged where no factual assertions were
made to support conclusory statements in the complaint).
Based on the foregoing, IT IS HEREBY ORDERED:
1. Mr. Leventhal’s Motion to Alter/Amend/Supplement Pleadings with
Memorandum of Law and Request for Additional Service (ECF No. 19) is
DENIED WITHOUT PREJUDICE.

s/ Katherine Menendez
Katherine Menendez
United States Magistrate Judge

Date: August 17, 2018

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