Oxendine-Bey v. Mitchell et al

Filing 34

ORDER granting 28 Motion to Dismiss. Defendants Motion to Dismiss or Strike Plaintiffs Second and Third Amended Complaints is GRANTED. (Doc. No. 28). Signed by Chief Judge Frank D. Whitney on 10/16/15. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-651-FDW
CHRISTOPHER OXENDINE-BEY,

)
)
Plaintiff,
)
)
vs.
)
)
)
JOHN MITCHELL, et al.,
)
)
Defendants.
)
____________________________________ )

ORDER

THIS MATTER comes before the Court on a motion to dismiss or strike Plaintiff’s
Second and Third Amended Complaints, filed by Defendants Mitchell, Lemon, Brooks, Mims,
Rorie, Beaver, Kiker, and Abernathy. (Doc. No. 28).
Plaintiff filed the original complaint in this action on November 21, 2014, naming as
Defendants: Kristopher Kiker, Michael Brooks, Kenneth Beaver, David Mitchell, Maranda
Mims, Angela Rorie, Milessia Abernathy, Terry Lemon, and John Aaron. (Doc. No. 1). In his
initial complaint, Plaintiff claims that Defendants failed to protect him from an alleged assault
involving another inmate at Lanesboro Correctional Institution which, according to Plaintiff,
occurred in October 2014. Before the Court’s frivolity review, Plaintiff filed an Amended
Complaint on May 4, 2015, adding factual allegations--including allegations pertaining to an
alleged assault involving another inmate at Lanesboro which, according to Plaintiff, occurred in
August 2014. (Doc. No. 7).
On May 7, 2015, the Court completed its frivolity review and allowed the claims asserted
in Plaintiff’s Complaint and Amended Complaint to proceed. (Doc. No. 8). On May 18, 2015,

summonses were issued to the Defendants named in the Complaint and Amended Complaint.
(Doc. No. 10). On the same day, without first filing a motion to amend, Plaintiff filed a Second
Amended Complaint, naming additional persons as Defendants and including allegations
regarding alleged wrongful conduct and an alleged assault involving another inmate at
Lanesboro, which Plaintiff asserts occurred in May 2015--after Plaintiff initiated this action.
(Doc. No. 9). In June 2015, the Complaint, as amended on May 4, 2015, was served on all of the
Defendants named in the Amended Complaint except for Defendant John Aaron. (Doc. No. 1420).
On June 19, 2015, the Defendants who were served with the original Complaint filed a
motion for an extension of time to respond to Plaintiff’s Complaint as amended on May 4, 2015.
(Doc. No. 22). On June 22, 2015, the Court allowed Defendants’ motion and extended
Defendants’ time to file an Answer or other response to August 2, 2015. Before Defendants filed
an Answer, Plaintiff filed a Third Amended Complaint on June 26, 2015. (Doc. No. 25). In his
Third Amended Complaint, Plaintiff again attempts to include claims against individuals not
named as Defendants in Plaintiff’s Initial and First Amended Complaint, as well as allegations
regarding conduct that allegedly occurred after the filing of Plaintiff’s Initial and First Amended
Complaint. (Doc. No. 25). On August 3, 2015, Defendants filed an Answer to Plaintiff’s initial
and First Amended Complaint. (Doc. No. 27). Defendants have now moved to strike Plaintiff’s
Second and Third Amended Complaints.
The Court agrees with Defendants that Plaintiff’s Second and Third Amended
Complaints are improper and should be stricken. Under Rule 15 of the Federal Rules of Civil
Procedure, Plaintiff was required to first obtain permission from the Court before filing the
Second and Third Amended Complaint. See FED. R. CIV. P. 15(a) (stating that a party may

amend its pleading once as a matter of course within a specified time period, and “[i]n all other
cases, a party may amend its pleading only with the opposing party’s written consent or the
court’s leave”). Plaintiff’s Second and Third Amended Complaints, (Doc. No. 9; 25), are hereby
stricken from the record.
IT IS THEREFORE ORDERED THAT:
(1) Defendants’ Motion to Dismiss or Strike Plaintiff’s Second and Third Amended
Complaints is GRANTED. (Doc. No. 28).