Morgan v. Bess

Filing 45

MEMORANDUM OPINION AND ORDER granting Plaintiff's 32 MOTION to Amend 23 Amended Complaint; directing Plaintiff to file an amended complaint by 4/13/2015, or Plaintiff's 34 , 36 , 37 , 38 , 39 , 41 and 42 filings related to t he Motion to Amend Complaint shall together constitute Plaintiff's second amended complaint; denying Plaintiff's 41 request for a status hearing, and 44 MOTION for Status Hearing; the Court declines to adopt the 30 PROPOSED FINDINGS AND RECOMMENDATION; directing that this matter is re-referred to Magistrate Judge Dwane L. Tinsley for further proceedings after 4/13/2015. Signed by Judge Thomas E. Johnston on 3/12/2015. (cc: attys; any unrepresented party; Plaintiff) (tmh) (Modified on 3/12/2015 to remove and replace image to correct date signed) (skh).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

BRIAN C. MORGAN,
Plaintiff,
v.

CIVIL ACTION NO. 2:13-cv-30454

JAMES RUBENSTEIN, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court are Plaintiff‟s Motion to Amend Complaint/Named Defendants,
(ECF 32), Plaintiff‟s Motion for Leave to Amend Complaint to Address New Defendant, (ECF
34), documents that are construed as Plaintiff‟s Letter-Form Motion to Amend Complaint, (ECF
36),1 Plaintiff‟s State a Claim Attempt, (ECF 37), Plaintiff‟s Motion to Amend Details, (ECF 38),
documents that are construed as additional detail in support of Plaintiff‟s Amended Complaint,
(ECF 39 & 42), documents that are construed as additional detail in support of Plaintiff‟s
Amended Complaint and Plaintiff‟s request for a status hearing, (ECF 41), and Plaintiff‟s Motion
for Status Hearing, (ECF 44).
Prior to these filings, by Standing Order entered on April 8, 2013 and filed in this case on
December 2, 2013, this action was referred to United States Magistrate Judge Dwane L. Tinsley
for submission of proposed findings of fact and recommendation for disposition (“PF&R”). (ECF
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“A document filed pro se is „to be liberally construed‟ . . . .” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

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6.) Magistrate Judge Tinsley filed his PF&R on August 5, 2014, which recommends that this Court
dismiss Plaintiff‟s Amended Complaint, (ECF 23), and this civil action pursuant to 28 U.S.C. §
1915A, deny as moot Plaintiff‟s Application to Proceed Without Prepayment of Fees and Costs,
(ECF 1), and waive the applicable filing fee. (ECF 30.) Plaintiff filed a general objection to the
PF&R on August 21, 2014, (ECF 31), and additional details to the objection on September 15,
2014, (ECF 34.)
Federal Rule of Civil Procedure 15 permits amendment of a complaint “only with the
opposing party‟s written consent or the court‟s leave.” Fed. R. Civ. P. 15(a)(2). “The court should
freely give leave when justice so requires.” Id. Under Rule 15(a), “leave to amend should be
denied only when the amendment would be prejudicial to the opposing party, there has been bad
faith on the part of the moving party, or amendment would be futile.” Matrix Capital Mgmt. Fund,
LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009) (citing Laber v. Harvey, 438 F.3d 404,
426 (4th Cir. 2006)). This liberal amendment approach “gives effect to the federal policy in favor
of resolving cases on their merits instead of disposing of them on technicalities.” Id. (internal
quotation marks and citation omitted).
Plaintiff‟s amendment of the operative complaint would not be prejudicial to the opposing
parties, there is no indication in the record that Plaintiff has acted in bad faith, and the Court is not
aware of any evidence indicating the amendment would be futile. Accordingly, the Court
GRANTS Plaintiff‟s Motion to Amend Complaint. (ECF 32.) The Court ORDERS Plaintiff to
file an amended complaint no later than April 13, 2015, or Plaintiff‟s previous filings related to the
Motion to Amend Complaint, (ECF 34, 36, 37, 38, 39, 41, & 42), shall together constitute
Plaintiff‟s second amended complaint.

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The Court cautions Plaintiff that future motions to amend the operative complaint may not
be granted by the Court if they do not satisfy the above standard. Similarly, the Court cautions
Plaintiff that future non-motion documents providing additional detail may not be considered by
the Court, depending on the application of the appropriate legal standards.
For reasons appearing to the Court, Plaintiff‟s request for a status hearing, (ECF 41), and
Plaintiff‟s Motion for Status Hearing, (ECF 44), are DENIED.
For the reasons discussed above, the Court DECLINES TO ADOPT the PF&R. (ECF
30.) It is further ORDERED that this matter is re-referred to Magistrate Judge Tinsley for further
proceedings after April 13, 2015.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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March 12, 2015