Opinion
Civil Action No. 10-cv-01636-REB-KLM.
August 27, 2010
ORDER
This matter is before the Court on Plaintiff's Motion to Amend [Docket No. 16; Filed August 25, 2010] (the "Motion"). The action was brought pursuant to 42 U.S.C. § 1983.
Fed.R.Civ.P. 15(a) provides for liberal amendment of pleadings. Leave to amend is discretionary with the court. Foman v. Davis, 371 U.S. 178, 182 (1962); Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799 (10th Cir. 1998). Amendment under the rule has been freely granted. Castleglenn, Inc. v. Resolution Trust Company, 984 F.2d 1571 (10th Cir. 1993) (internal citations omitted). "If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman, 371 U.S. at 182. "Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Plaintiff seeks to add the Weld County Sheriff's Department as a Defendant. The amendment would be futile because the Sheriff's Department is not a separate entity from Weld County and, thus, is not a person for purposes of a § 1983 action. See Stump v. Gates, 777 F. Supp. 808, 814-816 (D. Colo. 1991), aff'd 986 F.2d 1429 (10th Cir. 1993). Therefore, the Weld County Sheriff's Department would be subject to dismissal as a party.
Based on the foregoing, the Motion [#16] is DENIED.
Dated: August 27, 2010