Earl v. Foster et al

Filing 13

ORDER signed by Judge Rudolph T. Randa on 6/9/2015 DENYING 12 Plaintiff's Motion to Amend/Correct. (cc: all counsel, via mail to Daryise Earl at Green Bay Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DARYISE L. EARL,
Plaintiff,
-vs-

Case No. 15-CV-282

BRIAN FOSTER, et al.,
Defendants.

DECISION AND ORDER
The plaintiff, a Wisconsin state prisoner, filed a pro se complaint
under 42 U.S.C. § 1983, alleging that his civil rights were violated. On
May 7, 2015, the Court screened the complaint and dismissed the plaintiff’s
claims of class-of-one discrimination and deliberate indifference to a
hazardous condition of confinement. (ECF No. 7.) On May 18, 2015, the
plaintiff filed a motion for reconsideration of the Court’s screening order
(ECF No. 8), which the Court denied on May 21, 2015 (ECF No. 9). The
defendants have not yet responded to plaintiff’s complaint.
This matter is now before the Court on the plaintiff’s motion seeking
permission to amend his complaint. The plaintiff’s motion is denied.
The plaintiff has not complied with Civil Local Rule 15(b), which
requires that a motion to amend a pleading be filed with the proposed

amended pleading as an attachment.

Without the proposed amended

complaint, the Court will not grant the plaintiff’s motion.
That said, the Court reminds the plaintiff that Federal Rule of Civil
Procedure 15(a)(1)(B) states that, “A party may amend its pleading once as
a matter of course within . . . 21 days after service of a responsive
pleading.”

Given that the defendants have not yet filed a responsive

pleading, the plaintiff does not need to seek the Court’s permission before
filing an amended complaint; he may do so one time as a matter of course.
If the plaintiff chooses to file an amended complaint, he must put
the docket number assigned to this case on the amended complaint and
must call it in the title, “Amended Complaint.” The amended complaint
will replace the prior complaint, and must be complete in itself, without
referring back to the original complaint.

See Duda v. Bd. of Educ. of

Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the appellate court emphasized that in such instances, the
“prior pleading is in effect withdrawn as to all matters not restated in the
amended pleading[.]” Id. at 1057 (citation omitted). If the plaintiff files an
amended complaint, the Court will screen it pursuant to 28 U.S.C. §
1915A.

-2-

NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s motion for permission to
amend his complaint (ECF No. 12) is DENIED.
Dated at Milwaukee, Wisconsin, this 9th day of June, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-3-