Roberts v. Perry et al

Filing 12

ORDER denying Pltf's 9 Motion for Leave to Amend Complaint, at this time, with permission to refile his motion for leave to amend along with a proposed amended complaint; denying Pltf's 11 Motion for Default Judgment; and directing Clerk of this Court to mail Pltf a new Section 1983 complaint form. Signed by Chief Judge Frank D. Whitney on 7/20/17. (Pro se litigant served by US Mail.) (ejb)

DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-385-FDW
JIMMY ALLEN ROBERTS,

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Plaintiff,
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vs.
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FRANK L. PERRY, et al.,
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Defendants.
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___________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion to Amend Complaint,
(Doc. No. 9), and Plaintiff’s Motion for Default Judgment, (Doc. No. 11).
First, Plaintiff’s Motion for Leave to Amend Complaint will be denied because he has not
attached a proper proposed amended complaint to his motion.

Rather, Plaintiff seeks to

supplement the original complaint with an additional claim set forth in the motion. See (Doc. No.
9 at 1). In order to amend his complaint, Plaintiff may not simply add allegations to his already
existing complaint as he attempts to do here. Rather, he must submit a proposed amended
complaint that contains all claims he intends to bring in this action against all Defendants he
intends to sue. That is, a plaintiff may not amend his complaint in piecemeal fashion. Once
Plaintiff amends his complaint, the original complaint will be superseded, meaning that if an
amended complaint omits claims raised in the original complaint, the plaintiff has waived the
omitted claims. See Young v. City of Mt. Ranier, 238 F.3d 567 (4th Cir. 2001). The amended
complaint must be submitted on the form that will be supplied with this Order and set forth a “short
and plain” statement of the claims. See Fed. R. Civ. P. 8(a)(2).
Second, Plaintiff’s Motion for Default Judgment, (Doc. No. 11), will be denied as

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premature because the Complaint has not yet been initially reviewed and no Defendant has been
served.
IT IS THEREFORE ORDERED that:
(1) Plaintiff’s Motion for Leave to Amend Complaint, (Doc. No. 9), is DENIED at this
time, with permission to refile his motion for leave to amend along with a proposed
amended complaint in accordance with this Order.
(2) Plaintiff’s Motion for Default Judgment, (Doc. No. 11), is DENIED.
(3) The Clerk of this Court is respectfully directed to mail Plaintiff a new Section 1983
complaint form.
Signed: July 20, 2017

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