The opinion of the court was delivered by: Proud, Magistrate Judge
Before the Court is plaintiff Simmons' motion for leave to amend his complaint to add a claim under the Americans with Disabilities Act. (Doc. 17).
With regard to the subject motion, plaintiff has failed to submit a draft of the amended complaint, will all new material underlined, as required by Local Rule 15.1. Therefore, the subject motion must be denied.
A review of the record reveals that an amended complaint was previously filed on July 12, 2006, in another attempt to add a claim under the Americans with Disabilities Act to the Eight and Fourteenth Amendment claims set forth in the original complaint. (Doc. 10). Amendment by reference and/or by interlineation is not permitted; an amended pleading must contain all claims a party desires to assert in a single document. (See Local Rule 15.1). Therefore, the amended complaint, to which the defendants have responded, is procedurally flawed and not what plaintiff intended. In light of the fact that plaintiff is proceeding pro se, the Court will allow him one final chance to file a second amended complaint.
Defendants Benton and Garnett have filed a motion to dismiss the amended complaint (Doc. 14), which will be held in abeyance until the time period for plaintiff to file a second amended compliant has passed. If plaintiff files a proper second amended complaint, the defendants' motion to dismiss will be rendered moot, and they will be free to file an answer or other responsive pleading addressing the second amended complaint. In the event plaintiff fails to file a proper second amended complaint, the Court will consider the amended complaint (Doc. 10) to be the controlling pleading (asserting only an American with Disabilities Act claim), and the defendants' motion to dismiss will be decided.
IT IS THEREFORE ORDERED that the subject motion to amend (Doc. 17) is DENIED.
IT IS FURTHER ORDERED that, on or before August 15, 2007, plaintiff shall file a "Second Amended Complaint," which shall include a full recitation of all claims he desires to pursue in this action. No extensions will be granted. If plaintiff fails to file a proper second amended complaint, the amended complaint filed July 12, 2006 (Doc. 10) shall control.
CLIFFORD J. PROUD U. S. MAGISTRATE JUDGE
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