Schulz v. John Does 1-3 et al

Filing 21

ORDER re: Plaintiff's 20 "Partial objection to memorandum and recommendation of dismissal of medical attention complaint," which the Court construes as a motion to amend his Complaint. Plaintiff's 20 motion is DENIED without prejudice in accordance with the terms of this Order. Signed by Chief Judge Martin Reidinger on 11/18/2021. (Pro se litigant served by US Mail.)(kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:21-cv-00469-MR
BERNARD SCHULZ,

)
)
Plaintiff,
)
)
vs.
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JOHN DOES 1-3,
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)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s “Partial objection to
memorandum and recommendation of dismissal of medical attention
complaint” [Doc. 20], which the Court construes as a motion to amend his
Complaint.
Plaintiff filed a Complaint on September 7, 2021, under 42 U.S.C. §
1983, against an undetermined number of identified guards at the
Mecklenburg County Jail (the “Jail”).

[Doc. 1].

Plaintiff alleges that

unidentified guards at the Jail failed to protect him from two assaults by other
inmates and used excessive force in applying restraints to Plaintiff’s wrists.
Plaintiff also alleges that unidentified guards were deliberately indifferent to
Plaintiff’s serious medical needs resulting from these assaults.

[Id.].

Plaintiff’s excessive force and failure to protect claims survived initial review

Case 3:21-cv-00469-MR Document 21 Filed 11/18/21 Page 1 of 4

and the Court dismissed Plaintiff’s deliberate indifference claim because
Plaintiff failed to state a claim for relief. [Doc. 16]. Plaintiff has filed several
improper motions and documents with the Court, some of which sought
discovery from the Court. The Court advised Plaintiff to seek information
identifying the Doe Defendants through subpoena pursuant to Rule 45 of the
Federal Rules of Civil Procedure. [Doc. 16 at 9]. Plaintiff has not yet
submitted completed summonses to the Court identifying these Defendants
for service.
Before the Court now is Plaintiff’s “Partial objection to memorandum
and recommendation of dismissal of medical attention complaint” [Doc. 20],
which the Court will construe as a motion to amend Plaintiff’s Complaint. In
his current motion, Plaintiff states that he “erred” in failing to present all the
facts regarding the alleged delay of medical care in his Complaint and then
recounts additional factual details in support of his dismissed claim. [Id. at
1]. Plaintiff, again, does not identify the individuals allegedly involved in the
delayed medical care. [See id.].
Leave to amend should be “freely give[n] . . . when justice so requires.”
Fed. R. Civ. P. 15. However, “a district court has discretion to deny a motion
to amend a complaint, so long as it does not outright refuse ‘to grant the
leave without any justifying reason.’”

Equal Rights Ctr. v. Niles Bolton

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Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). A district court may deny a motion to amend when the
amendment would be prejudicial to the opposing party, the moving party has
acted in bad faith, or the amendment would be futile. Id.
Here, Plaintiff has not attached a proposed amended complaint to his
motion. To amend his Complaint, Plaintiff must make a motion and submit
a proposed amended Complaint that contains all claims he intends to bring
in this action against all Defendants he intends to sue and states all relief he
is seeking.

Furthermore, if Plaintiff amends his Complaint, the original

Complaint would 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 Court, therefore, will deny Plaintiff’s motion to amend his
Complaint without prejudice to allow Plaintiff to properly move to amend his
Complaint, if he so chooses.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s motion [Doc. 20] is
DENIED without prejudice in accordance with the terms of this Order.

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IT IS SO ORDERED.
Signed: November 18, 2021

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