Griepsma v. Wend et al

Filing 94

ORDER denying plaintiff's 90 Ex Parte Motion to Amend signed by Magistrate Judge Mary Alice Theiler. (PM) cc: plaintiff via the USPS

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 JAMES D. GRIEPSMA, Plaintiff, 10 11 12 CASE NO. C16-1843-JLR-MAT v. ORDER DENYING PLAINTIFF’S EX PARTE MOTION TO AMEND CHARLIE WEND, et al., Defendants. 13 14 15 Plaintiff proceeds pro se and in forma pauperis (IFP) in this 42 U.S.C. § 1983 case and 16 filed an Ex Parte Motion to Amend. (Dkt. 90.) Having considered the motion, defendants’ 17 opposition (Dkt. 91), and the remainder of the record, the Court finds and concludes as follows: 18 (1) Plaintiff seeks to amend his complaint by adding Skagit County Patrol Deputy 19 Sheriff Brad Holmes as a defendant, and claims against Holmes for harassment, malicious 20 prosecution, and violation of plaintiff’s right to due process. (Dkt. 90.) For the reasons set forth 21 below, the Court finds plaintiff’s motion to amend deficient and no basis for allowing the filing of 22 an amended complaint. 23 Plaintiff did not submit a proposed amended complaint with his motion. A motion to ORDER PAGE - 1 1 amend not accompanied by a proposed amended complaint is procedurally deficient and will not 2 be considered. See LCR 15 (party seeking to amend pleading must attach copy of proposed 3 amended pleading as exhibit to motion or stipulation to amend). Plaintiff also failed to serve his 4 motion on defendants. A motion to amend is not a proper subject for an ex parte motion. (See, 5 e.g., Dkt. 35 at 3 (“All motions, pretrial statements and other filings shall be accompanied by proof 6 that such documents have been served upon counsel for the opposing party[.] . . . Failure to comply 7 with the provisions of this Order can result in dismissal/default judgment or other appropriate 8 sanctions.”) 9 Nor would allowing the proposed amendment be justified. Federal Rule of Civil Procedure 10 15 provides that the Court “should freely give leave [to amend a pleading] when justice so 11 requires.” Fed. R. Civ. P. 15(a). Leave to amend may be denied where there is undue delay, bad 12 faith or dilatory motive, undue prejudice to the opposing party, or when the amendment would be 13 futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). 14 Plaintiff’s original complaint names numerous employees of Skagit County Jail as 15 defendants and raises allegations regarding incidents at the jail during plaintiff’s incarceration. 16 (See Dkt. 4.) In proposing an amendment, plaintiff seeks to add as a defendant an individual not 17 employed at the jail and claims relating to incidents occurring outside the jail. Plaintiff also failed 18 to seek the amendment in a timely manner. Defendants filed their first dispositive motion in March 19 2017, and the Court re-noted all four pending dispositive motions and a motion to find plaintiff’s 20 complaint frivolous for consideration on August 18, 2017. (See Dkt. 75.) The Court received 21 plaintiff’s motion to amend on August 17, 2017. Leave to amend would be inappropriate given 22 the undue delay in seeking the amendment and the undue prejudice to defendants. 23 (2) ORDER PAGE - 2 The Clerk is directed to send a copy of this Order to the parties and to the Honorable 1 2 James L. Robart. DATED this 13th day of September, 2017. 3 A 4 Mary Alice Theiler United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER PAGE - 3

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