Hicks v. Whetsel et al

Filing 38

ORDER denying 35 plaintiff's Motion for Leave to File Amended Complaint. Signed by Honorable Vicki Miles-LaGrange on 1/3/2017. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARGARET HICKS, as personal
representative of the Estate of
Cecil R. Arnold, deceased,

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)
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Plaintiff,
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vs.
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SHERIFF JOHN WHETSEL (“Whetsel”), )
in his official capacity as Sheriff of
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Oklahoma County, et al.,
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Defendants.
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Case No. CIV-16-532-M

ORDER
Before the Court is plaintiff’s Motion for Leave to File Amended Complaint, filed November
21, 2016. On December 12, 2016, defendants Armor Correctional Health Services, Inc., Sheriff
John Whetsel, and Major Jack Herron filed their responses.
On October 31, 2016, the Court entered an order granting defendants’ motions to dismiss and
dismissing all claims against defendants Sheriff John Whetsel, Major Jack Herron, the Board of
County Commissioners of Oklahoma County, and Armor Correctional Health Services. The Court
further declined to exercise supplemental jurisdiction over plaintiff’s state law wrongful death claim
against defendant Ragel Johnson and dismissed said claim without prejudice pursuant to 28 U.S.C.
§ 1367(c). Additionally, on October 31, 2016, the Court entered judgment dismissing this action.
Plaintiff now moves this Court, pursuant to Federal Rule of Civil Procedure 15, for leave to file a
second amended complaint.
The Tenth Circuit “has repeatedly and unequivocally held that [o]nce judgment is entered,
the filing of an amended complaint is not permissible until judgment is set aside or vacated pursuant
to Fed.R.Civ.P. 59(e) or 60(b).” The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1087 (10th

Cir. 2005). In the case at bar, plaintiff has not sought to set aside or vacate the judgment entered on
October 31, 2016. Accordingly, the Court finds that the filing of an amended complaint is not
permissible.
The Court, therefore, DENIES plaintiff’s Motion for Leave to File Amended Complaint
[docket no. 35].
IT IS SO ORDERED this 3rd day of January, 2017.