Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
JONES v. MOORE
December 7, 2005.
GERALD JONES, Plaintiff,
JEFF MOORE, et al., Defendants.
The opinion of the court was delivered by: CLIFFORD PROUD, Magistrate Judge
Before the Court are the defendants' motions to strike the
amended complaint filed by plaintiff on September 19, 2005.
(Docs. 57 and 61). Defendants object that: (1) plaintiff did
not seek leave of Court to file an amended complaint; (2)
disregarding formalities and allowing amendment at this juncture
would be contrary to the deadline for amendment prescribed by the
trial practice schedule controlling this case; (3) all new
material in the amended complaint is not underlined as required
by Local Rule 15.1; and (4) proposed new claims of retaliation
and due process violations could have been raised before, and now
they are beyond the statute of limitations and plaintiff has not
shown that they relate back to his original claims or that he had
good cause for not raising them before.
Plaintiff has not specifically respond to defendants' motion to
strike, but he has now filed a "Motion to Add and Particularize
Plaintiff[`s] Already Intended Stated Claims, which the Court
construes as a motion for leave to amend his complaint. (Doc.
64). In response, defendants add that plaintiff's deposition
testimony illustrates that there is no factual basis for adding
the new claims. (Doc. 69). Federal Rule of Civil Procedure 15(a) and Local Rule 15.1
require plaintiff to obtain leave of Court before filing an
amended complaint which plaintiff did not do. Leave to amend is
to be granted freely, "when justice so requires." Fed.R.Civ.P.
15(a). Mindful that plaintiff is proceeding pro se, the Court
has reviewed the amended complaint and considered plaintiff's
assertions that the Court misconstrued his original complaint,
omitting claims for retaliation and due process. Although
plaintiff does mention "due process" several times in the
original complaint, his use of that term appears legally
misplaced. Plaintiff refers to the infliction of excessive force
and denial of medical care without due process, apparently in
relation to allegations that prison rules and/or policies about
the use of force were not followed. However, the violation of
prison rules and policies relative to the use of force or
provision of medical care does not implicate due process per se.
See Sandin v. Conner, 515 U.S. 472, 484-485 (1995)
(State-created liberty interests protected under due process
clause are "generally limited to freedom from restraint; and
"[d]iscipline by prison officials in response to a wide range of
misconduct falls within the expected perimeters of the sentence
imposed by a court of law."). Accordingly, the Court does not
find that justice requires allowing plaintiff leave to amend his
complaint to add claims that are patently without legal merit.
IT IS THEREFORE ORDERED that defendants' motions to strike
plaintiff's amended complaint (Docs. 57 and 61) are GRANTED.
The Clerk shall have the record so reflect.
IT IS FURTHER ORDERED that plaintiff's motion for leave to
amend his complaint (Doc. 64) is DENIED. IT IS SO ORDERED.
© 1992-2005 VersusLaw ...
Buy This Entire Record For