Opinion
No. 3:01-CV-2644-P
August 29, 2003
REPORT AND RECOMMENDATION
Before the Court are Plaintiffs Motion Requesting Permission to Filed Amendment Complaint to the Court Pursuant to Rule 15(a) Federal Rules of Civil Procedure, filed February 10, 2003, and Plaintiffs Motion Requesting Permission from the Court to Filed Amendment Complaint Pursuant to Rule 15(a), 15(c), Rule 15(d), Rule 19(a), Rule 19(b) and Rule 20 Pursuant to Federal Rules of Civil Procedure, filed February 18, 2003. By Order of Reference filed April 2, 2003, the preceding pleadings were referred to the undersigned Magistrate Judge for report and recommendation.
I. BACKGROUND
Plaintiff, a state inmate currently incarcerated in the Texas prison system, brought suit against several defendants, including Leticia Walker, his former Parole Officer. On January 6, 2003, the Court dismissed plaintiffs claims against the other defendants as frivolous, but directed that Ms. Walker be served with process within thirty days. ( See Order of Jan. 6, 2003.) On January 29, 2003, a return of service was returned to the Court as unexecuted because Walker had moved and left no forwarding address. ( See Return of Service dated Jan. 29, 2003.) On February 10, 2003, plaintiff filed his first motion to amend. On February 18, 2003, he filed a second motion to amend. By his motions, plaintiff seeks to add claims against unidentified supervisors of defendant Walker, the Dallas Police Department, and an unidentified "local government." Due to the very nature of amendments, the second motion to amend renders moot the first motion to amend. Consequently, the Court should deem the first motion to amend moot. For the reasons that follows, it should deny plaintiff leave to file the second proposed amendment.
II. LEAVE TO AMEND
Fed.R.Civ.P. 15(a) permits parties to amend their pleadings "once as a matter of course at any time before a responsive pleading is served." In this instance, no responsive pleading has been served in this action. Nevertheless, the order granting plaintiff permission to proceed with this action in forma pauperis specifically provides that "[n]o amendments or supplements to the Complaint shall be filed without prior Court approval." ( See Filing Fee Order dated Dec. 26, 2001.) Plaintiff must, therefore, obtain leave of court to file the instant amendment.
Rule 15(a) directs the courts to freely grant leave to amend "when justice so requires." That standard guides the courts whenever a plaintiff seeks leave to amend. Despite the liberal standard for granting leave, the courts do not automatically grant leave whenever requested. See Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993). The Supreme Court long ago set forth the standard for determining when justice requires granting a request to amend:
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the other party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."Whitmrre v. Victus Ltd., 212 F.3d 885, 889 (5th Cir. 2000) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "A litigant's failure to assert a claim as soon as he could have is properly a factor to be considered in deciding whether to grant leave to amend. Merely because a claim was not presented as promptly as possible, however, does not vest the district court with authority to punish the litigant." Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (quoting Carson v. Polley, 689 F.2d 562, 584 (5th Cir. 1982)).
In this case, there has been undue delay between the filing of the action and the requested amendment. Plaintiff initially filed this action in December 2001. However, he did not move to amend his complaint until after the Court dismissed all defendants except Leticia Walker in January 2003. Plaintiff gives no reason for the dilatory action. In proper circumstances, the Court may deny leave to amend for undue delay alone. See Lewis v. Fresne, 252 F.3d 352, 360 (5th Cir. 2001) (finding no abuse of discretion when the trial court denied leave to amend when there was an unexplained one-year delay in seeking leave to amend).
Leave should also be denied based on the futility of the proposed amendment because plaintiff seeks to add claims against improper parties. Plaintiff seeks to join unidentified supervisors of defendant Walker and an unidentified local government as defendants in this action. However, "[n]either the Federal Rules of Civil Procedure nor [ 42 U.S.C. § 1983] provides authority for joining fictitious defendants in this suit." Taylor v. Federal Home Loan Bank Bd., 661 F. Supp. 1341, 1350 (N.D. Tex. 1986). Because the Court lacks personal jurisdiction over such unidentified, fictitious defendants claims against such defendants are subject dismissal "pursuant to Fed.R.Civ.P. 12(b)(1) and (2)." Thus, leave to join the fictitious defendants is unwarranted.
Adding the Dallas Police Department as a defendant is likewise unwarranted. That department is a non-jural entity that is not subject to suit. A plaintiff may not bring a civil rights action against a servient political agency or department unless such agency or department enjoys a separate and distinct legal existence. Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991).
In Darby, the Fifth Circuit held that "unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself." Id. at 313. The Dallas Police Department is not a jural entity that can be sued. Id. at 313-14. Because the claims against that department are subject to dismissal as frivolous under 28 U.S.C. § 1915(e)(2) and 1915A, leave to add the department as a defendant is unwarranted.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court DEEM plaintiffs first motion to amend (doc. 22) moot, and DENY plaintiffs second motion to amend (doc. 23). Justice does not require granting plaintiff leave to file the requested amended complaint.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).