Troche v. Morgan

Filing 22

ORDER that plaintiff's 16 MOTION to Amend his complaint is Granted. REPORT AND RECOMMENDATION that defendant's 11 MOTION for Judgment on the Pleadings be Denied as Moot. ( Objections to R&R due by 3/1/2013). Signed by Magistrate Judge Karen L. Litkovitz on 2/12/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SHANNON EARL TROCHE,
Plaintiff,
vs.
DONALD MORGAN,
Defendant.

CaseNo. 1:12-cv-176
Speigel, J.
Litkovitz, M.J.
ORDER AND REPORT AND
RECOMMENDATION

Plaintiff, an inmate at the Ohio State Penitentiary, brings this prisoner civil rights action
under 42 U.S.C. § 1983. Plaintiff initiated this action in March 2012, proceeding prose. See
Docs. 1, 2. On April9, 2012, defendant filed a motion for judgment on the pleadings. (Doc.
11 ). The district judge subsequently granted plaintiffs motion for appointment of counsel (Doc.

5) and plaintiffs newly appointed counsel filed a motion to amend the complaint. Docs. 14, 16.
This matter is currently before the Court on defendant's motion for judgment on the pleadings
(Doc. 11), and on plaintiffs motion to amend (Doc. 16), defendant's response in opposition
(Doc. 17), and plaintiffs reply memorandum. (Doc. 20).
Plaintiffrequests permission to amend the complaint pursuant to Fed. R. Civ. P. 15(a).
Plaintiffs proposed amended complaint: (1) includes more specific allegations regarding his
claims against defendant Morgan; (2) seeks to add an additional defendant, Correctional Officer
Crabtree; and (3) contains additional allegations pertaining to his claims that his constitutional
rights to due process and to be free from cruel and unusual punishment were violated by
defendant Morgan and Officer Crabtree. (Doc. 16, Ex. 1). Defendant opposes plaintiffs motion,
asserting futility.
The granting or denial of a motion to amend pursuant to Fed. R. Civ. P. 15(a) is within
the discretion of the trial court. Leave to amend a complaint should be liberally granted. Farnan

v. Davis, 371 U.S. 178 (1962). The Court should consider factors such as undue delay, bad faith
or dilatory motive on the part of the movant, the repeated failure to cure deficiencies by
amendments previously allowed, lack of notice to the opposing party, undue prejudice to the
opposing party by virtue of allowance of the amendment, and futility of amendment. I d. See
alsoBrumbalough v. Camelot Care Centers, Inc., 427 F.3d 996, 1001 (6th Cir. 2005) (citing Coe
v. Bell, 161 F.3d 320, 341-42 (6th Cir. 1998); Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.
1994)).
Given the early procedural posture of this case and that defendant has not alleged that he
would be prejudiced, the undersigned finds that plaintiffs motion to amend (Doc. 16) should be
granted pursuant to Fed. R. Civ. P. 15(a). Accordingly, it is hereby ORDERED that plaintiffs
motion to amend his complaint (Doc. 16) be GRANTED.
Further, IT IS RECOMMENDED THAT defendant's motion for judgment on the
pleadings (Doc. 11) be DENIED as moot.

Date:

.z/!dt

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Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1: 12-cv-176

SHANNON EARL TROCHE,
Plaintiff,

Speigel, J.
Litkovitz, M.J.

VS.

DONALD MORGAN,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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