Carter v. Muldoon et al
ORDER - that Plaintiff's Motion to Amend Pleadings (Filing No. 65 ) is denied. Ordered by Magistrate Judge Michael D. Nelson. (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN M. CARTER,
WILLIAM MULDOON and DAVE STOLZ, in
their individual capacities,
This matter is before the Court on the Motion to Amend Pleadings (Filing No. 65) filed by
Plaintiff, John M. Carter, pro se. The Court will deny the motion.
First, Plaintiff did not file a brief with his motion, which is grounds alone for the Court to
deny his motion.1 This district’s local rules provide, “If the court concludes that a motion raises
a substantial issue of law . . . it may treat the failure to file a brief as an abandonment of the
motion.” NECivR 7.1(a)(1)(B). Plaintiff’s motion raises a substantial issue of law because he is
seeking to amend his pleadings outside the deadline set by the Court. “[P]ro se litigants are not
excused from failing to comply with substantive and procedural law.” Burgs v. Sissel, 745 F.2d
526, 528 (8th Cir. 1984)(citing Faretta v. California, 422 U.S. 806, 834-35 n. 46 (1975)).
“[P]arties who proceed pro se are bound by and must comply with all local and federal
procedural rules.” NEGenR 1.3(g). Therefore, the Court may treat Plaintiff’s failure to file a
brief in accordance with this district’s local rules as an abandonment of his motion.
Plaintiff also did not comply with NECivR 15.1 when filing his motion. “A party who
moves for leave to amend a pleading (including a request to add parties) must file as an
attachment to the motion an unsigned copy of the proposed amended pleading that clearly
identifies the proposed amendments.” NECivR 15.1(a). Plaintiff did not attach a proposed
pleading to his motion nor did he identify his proposed amendments; instead, five days after he
filed his motion, Plaintiff filed a “Complaint for Racial Discrimination; Civil Conspiracy to
Violate Civil Rights; Violation of the Thirteenth Amendment” against William Muldoon and
Additionally, neither defendant filed a brief in opposition to the motion. Although a defendant’s “[f]ailure to file an
opposing brief is not considered a confession of a motion,” see NECivR 7.1(b)(1)(C), a response to Plaintiff’s
motion by Defendants would have been helpful to the Court.
David Stolz. (Filing No. 66). Plaintiff’s failure to comply with NECivR 15.1 is further reason to
deny his motion.
Finally, the Court also finds that Plaintiff’s motion should be denied on its merits.
Although Fed. R. Civ. P. 15(a) provides that a Court should “freely give leave” to amend a
pleading “when justice so requires,” a party does not have an absolute right to amend, and
“denial of leave to amend may be justified by undue delay, bad faith on the part of the moving
party, futility of the amendment or unfair prejudice to the opposing party.” Amrine v. Brooks,
522 F.3d 823, 833 (8th Cir. 2008)(quotation and citation omitted). Additionally, when a party
seeks leave to amend under Rule 15(a) outside of the deadline established by a scheduling order,
the party must first demonstrate good cause under Rule 16(b). See Popoalii v. Corr. Med. Servs.,
512 F.3d 488, 497 (8th Cir. 2008); Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th
In this case, the Court entered a progression order setting July 30, 2018, as the deadline for
the parties to file “[a]ny motion to amend pleadings” and reminded the parties that they “must
comply with the provisions of NECivR 15.1 when moving to amend the pleadings.” (Filing No.
58). Plaintiff filed the present motion to amend on September 12, 2018, after the deadline
expired, and did not request an extension of the deadline. Therefore, Plaintiff must demonstrate
good cause to amend his pleadings. See Sherman, 532 F.3d at 716. “The primary measure of
good cause is the movant’s diligence in attempting to meet the order’s requirements.” Sherman,
532 F.3d at 716 (citing Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). “[I]f the reason for
seeking the amendment is apparent before the deadline and no offsetting factors appear, the Rule
16 deadline must govern.” Financial Holding Corp. v. Garnac Grain Co., 127 F.R.D. 165, 166
(W.D. Mo. 1989). The decision whether to grant a motion for leave to amend is within the sound
discretion of the district court. Popoalii, 512 F.3d at 497.
As noted above, Plaintiff did not file a brief, but states in his motion that after he received
Defendants’ discovery responses on August 30, 2018, he “determined that there are additional
defendants that need to be added to the lawsuit and causes of action to be added” because the
information “revealed other issues . . . that need to be brought before a jury.” (Filing No. 65).
Plaintiff does not explain what the discovery revealed or identify the new issues, and review of
Plaintiff’s “Complaint” at Filing No. 66 (which the Court will construe as Plaintiff’s proposed
amended pleading) does not make these new issues apparent. Plaintiff also does not name new
defendants in his proposed pleading, which only lists William Muldoon and David Stolz as
defendants in the caption. Plaintiff also raises the same “Deprivation of Equal Protection and
Due Process” and “Racial Discrimination” claims as he raised in his original Complaint.2
Plaintiff generally adds more factual allegations to support these claims in his proposed pleading,
see, e.g., Filing No. 66 at p. 6 ¶¶ 19-20, 22-24, but does not otherwise change the substance of
his previous surviving claims.
The only substantive change in Plaintiff’s proposed amended pleading is the addition of a
claim under the Thirteenth Amendment. In support of this claim, Plaintiff asserts that “The only
time Plaintiff[’]s credibility to perform his duties as a law enforcement officer has ever been
raised is when the Defendants have contacted persons within the jurisdictions where Plaintiff
was performing his duties as a law enforcement officer and made it the subject of discussion and
provided targeted information for the receiving parties to consider.” (Filing No. 66 at p. 15 ¶
51). Plaintiff claims that “The willful, wanton and malicious conduct of the Defendants to use
every avenue at their disposal to influence others in positions of authority or apparent authority
to discriminate against the Plaintiff and deny the Plaintiff the opportunity to advance in
employment opportunities is a badge of slavery.” (Id. at ¶ 52). Plaintiff’s allegations in support
of this claim would have been apparent prior to the expiration of the deadline to amend
pleadings. Moreover, Plaintiff’s proposed amended pleading contains no plausible allegations
that could fairly be characterized as involuntary servitude within the meaning of the Thirteenth
Amendment. Therefore, permitting Plaintiff to amend his pleading to add this claim would be
futile as it would not survive a motion to dismiss. See Zutz v. Nelson, 601 F.3d 842, 850 (8th
Cir. 2010)(“Denial of a motion for leave to amend on the basis of futility means the district court
has reached the legal conclusion that the amended complaint could not withstand a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.”)(internal quotations
As in his original Complaint, Plaintiff asserts his equal protection and due process claims under 42 U.S.C. § 1982,
not § 1983, and his claim for racial discrimination under 42 U.S.C. § 1981 without reference to § 1983.
Nevertheless, Chief Judge Smith Camp previously concluded that “Carter may proceed against Muldoon and Stolz,
in their individual capacities, on the following claims: (1) race discrimination under 42 U.S.C. § 1981, (2) equal
protection under the Fourteenth Amendment, and (3) substantive due process under the Fourteenth Amendment.”
(Filing No. 56).
In sum, Plaintiff did not comply with this district’s local rules when filing his motion for
leave to amend, did not show good cause for leave to amend after the deadline imposed by the
Court, and his proposed new claim would be futile. Accordingly,
IT IS ORDERED that Plaintiff’s Motion to Amend Pleadings (Filing No. 65) is denied.
Dated this 3rd day of October, 2018.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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