Webb v. Smith et al

Filing 24

ORDER Striking 21 Supplement to 3 Complaint in Accordance with Bivens v. Six Unknown Named Agents filed by David Webb. 1. Plaintiffs Second Supplement to Complaint in Accordance with Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (Doc. No. 21) is STRICKEN fromthe docket. 2. If Plaintiff wishes to amend his complaint, he must do the following on or before November 5, 2015: a) Plaintiff must file a motion in compliance with Federal Rule of Civil Procedure15 and Distr ict of Utah Local Rule 15-1, seeking leave to file an amendedcomplaint; b) Plaintiff must include a proposed amended complaint as an exhibit to thatmotion; and c) the proposed amended complaint must stand on its own and contain all of the allegations, parties, and claims Plaintiff intends to be before this Court. 3. In light of the foregoing, the Court extends Defendants responsive deadline to November 19, 2015. Signed by Judge David L. Russell on 10/22/2015. (jwt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DISTRICT
DAVID WEBB,
Plaintiff,
v.
MEGAN SMITH, et al.,
Defendants.

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Case No. CIV-15-213-DLR

ORDER STRIKING DOC. NO. 21.
For the reasons set forth below, Plaintiff’s September 28, 2015 filing, “Second
Supplement to Complaint in Accordance with Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971)” (“Second Supplement”) Doc. No. 21 is hereby STRICKEN from
the record as improper. The Court instructs Plaintiff to file a motion pursuant to Federal
Rule of Civil Procedure 15 and District of Utah Local Rule 15-1.1
I.

Plaintiff’s Second Supplement (Doc. No. 21) is Improper.
Plaintiff served Defendants on August 31, 2015. Doc. No. 20. Twenty-eight days

later, on September 28, 2015, he filed the Second Supplement, apparently seeking to
modify his complaint. Doc. No. 21. Plaintiff had already filed a “Supplement to
Complaint in Accordance with Bivens v. Six Unknown Named Agents, 403 U.S. 388

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Local Rule 15-1 states: “Parties moving under FRCP 15-1 to amend a complaint must attach the
proposed amended complaint as an exhibit to the motion for leave to file. A party who has been granted
leave to file must subsequently file the amended complaint with the court. The amended complaint filed
must be the same complaint proffered to the court, unless the court has ordered otherwise.” DUCivR 15-1

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(1971)” (“First Supplement”) on April 1, 2015. Doc. No. 5.2 Because Plaintiff sought to
amend his complaint a second time more than twenty-one days after service, the Federal
Rules required him to first seek permission, or “leave” from the Court to do so. Fed. R.
Civ. P. 15. Plaintiff, however, filed his Second Supplement without seeking such
permission. Doc. No. 21. Because Plaintiff filed the Second Supplement without the
Court’s permission, the Court strikes the Second Supplement. See Matthews v. LaBarge,
Inc., 407 F. App’x 227, 280 (10th Cir. 2011) (district court did not abuse discretion
striking amended complaint where pro se plaintiff failed to obtain leave); see also Yang
v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (“pro se status ‘does not excuse the
obligation of any litigant to comply with the fundamental requirements of the Federal
Rules of Civil and Appellate Procedure’”) (quoting Ogden v. San Juan Cnty., 32 F.3d
452, 455 (10th Cir. 1994)).
In the Second Supplement, Plaintiff references Federal Rule 15, including its
provision that a court “should freely give leave [to amend] when justice so requires,” and
that “jurisdiction is proper in this Court according to FRCP Rule 15(a)(2).”3 Even under
the liberal construction this Court affords pro se litigants, Plaintiff’s general reference is
insufficient to consider the Second Supplement to be a motion seeking leave to amend the
complaint under Rule 15.
Moreover, even if the Court were to construe Plaintiff’s filing as a motion
requesting permission to amend his complaint, it would deny such a request. Plaintiff has

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As discussed below, the First Supplement (Doc. No. 5) is now the operative complaint.
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Plaintiff also cites, without explanation, certain portions of Rule 15 governing the relation back of
amendments. Doc. No. 21, at 1 (citing 15(c)(1)(C)(i)-(ii)). To the extent Plaintiff seeks the relation back
of his amendments, he may submit this request in the Rule 15 motion.

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now twice sought to modify his original complaint through “supplements.” Doc. Nos. 5,
21. However, Plaintiff may not modify his complaint by filing piecemeal amendments.
Instead, if he wishes to amend his complaint, he must submit a single document that
includes all of the allegations, parties, and claims he wishes to be before the Court.
Plaintiff must submit this document as a “proposed amended complaint” attached to the
motion described above.
II.

Plaintiff Is Advised that the First Supplement (Doc. No. 5) Is the Only
Complaint Before This Court.
Plaintiff is advised that his First Supplement, Doc. No. 5, has completely replaced

and superseded the original complaint, Doc. No. 3. The original complaint therefore has
no legal effect and will not be considered.
It appears that Plaintiff attempted to use the First Supplement to modify the
original complaint. To do so, he would have had to incorporate the original complaint by
reference in the amended complaint pursuant to Federal Rule of Civil Procedure 10(c).
Fed. R. Civ. P. 10(c). Under Rule 10(c), “specific allegations of the prior complaint may
be referenced or incorporated by the amended complaint, but only if reference to
allegations in the prior complaint is direct and specific” Fullerton v. Maynard, 943 F.2d
57, at *2 (10th Cir. 1991) (unpublished); Schoonover v. Stuart, 2010 WL 3022845, at *2
(N.D. Okla. July 29, 2010) (quoting id.). General references in an amended complaint to
the prior complaint are insufficient. Id.
Plaintiff’s First Supplement does not make “direct and specific” references to the
original complaint, only general references. Doc. No. 5. Thus First Supplement does not
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incorporate the original complaint, but instead completely replaces it. Fullerton, 943 F.2d
at *2 (affirming holding that pro se plaintiff’s amended complaint supersedes original
complaint); Shouse v. Price, 2006 WL 3692485, at *1 (W.D. Okla. Dec. 7, 2006) (pro se
plaintiff’s amended complaint superseded the complaint it modified); Schoonover, 2010
WL 3022845, at *2 (same). Because the original complaint (Doc. No. 3) no longer has
any legal effect, it will not be considered. If Plaintiff does not wish for his First
Supplement (Doc. No. 5) to be the operative complaint, he must seek to amend his
complaint through the procedures outlined above.
III.

Conclusion

In accordance with the foregoing, the Court ORDERS the following:
1. Plaintiff’s Second Supplement to Complaint in Accordance with Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971) (Doc. No. 21) is STRICKEN from
the docket.
2. If Plaintiff wishes to amend his complaint, he must do the following on or before
November 5, 2015:
a) Plaintiff must file a motion in compliance with Federal Rule of Civil Procedure
15 and District of Utah Local Rule 15-1, seeking leave to file an amended
complaint;
b) Plaintiff must include a proposed amended complaint as an exhibit to that
motion; and
c) the proposed amended complaint must stand on its own and contain all of the
allegations, parties, and claims Plaintiff intends to be before this Court.
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3. In light of the foregoing, the Court extends Defendants’ responsive deadline to
November 19, 2015.
IT IS SO ORDERED, this 22nd day of October, 2015.

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