Murdock v. Thompson et al
Filing
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ORDER Denying 16 Pro Se Motion for Reconsideration/ Opposition to Defendants Motion to Dismiss and Denying 17 Pro Se Motion to Amend. Plaintiff is granted leave to file a superseding Amended Complaint by October 12, 2018, as stated in according with this Order and all applicable rules and procedures. Signed by Chief Judge Frank D. Whitney on 9/25/2018. (Pro se litigant served by US Mail.)(jaw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-20-FDW
AJANAKU E. MURDOCK,
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Plaintiff,
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vs.
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FNU PERRY, et al.,
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Defendants.
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___________________________________ )
ORDER
THIS MATTER comes before the Court on Plaintiff’s pro se “Motion for
Reconsideration/ Opposition to Defendants Motion to Dismiss,” (Doc. No. 16), and “Motion to
Amend,” (Doc. No. 17).
Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 that passed initial review on claims
that his right to send and receive mail has been infringed, and the remaining claims were dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). (Doc. No. 11). A request for waiver of service
on is pending with the North Carolina Department of Public Safety. (Doc. No. 12).
Plaintiff filed a Motion for an extension of time to file an Amended Complaint, which the
Court granted until September 14, 2018. (Doc. Nos. 14, 15). He has failed to file an Amended
Complaint to date. Instead, Plaintiff filed the instant Motion for Reconsideration/ Opposition to
Defendants Motion to Dismiss,” (Doc. No. 16), and “Motion to Amend,” (Doc. No. 17). He argues
that several of his § 1983 claims should not have been dismissed and attempts to state sufficient §
1983 claims.
To the extent Plaintiff seeks reconsideration of the Order on Initial Review and argues that
his § 1983 claims are sufficient to proceed, his Motions will be denied. Plaintiff’s belief that
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Defendants have filed a Motion to Dismiss the Complaint is mistaken as no Defendant has yet
waived service or appeared in this case. Plaintiff will not be permitted to present amended claims
in a piecemeal manner. However, Plaintiff will be granted leave to file an Amended Complaint
by October 12, 2018. Plaintiff may not simply add allegations to his already existing Complaint
as he attempts to do in the present Motions. 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. Once Plaintiff files an Amended 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. 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 comply with all applicable procedural rules, for instance, by setting forth a “short and
plain” statement of the claims. See Fed. R. Civ. P. 8(a)(2). If Plaintiff fails to file an Amended
Complaint, the Court will proceed on his Complaint as originally filed, (Doc. No. 1).
IT IS THEREFORE ORDERED that:
(1) Plaintiff’s pro se “Motion for Reconsideration/ Opposition to Defendants Motion to
Dismiss,” (Doc. No. 16), and “Motion to Amend,” (Doc. No. 17), are DENIED.
(2) However, Plaintiff is granted leave to file a superseding Amended Complaint by
October 12, 2018, as stated in according with this Order and all applicable rules and
procedures. If Plaintiff fails to do so, the Court will proceed on the Original Complaint.
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(3) The Clerk of this Court is respectfully directed to mail Plaintiff a new Section 1983 Complaint
form.
Signed: September 25, 2018
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