Opinion
Civil Action No. 12-cv-01191-REB-BNB
01-28-2013
ROBERT BLACKMAN, Plaintiff, v. DAN CLARK, Lieutentant [sic], ADX Florence, Colorado, Defendant.
ORDER
This matter arises on Plaintiff [sic] Motion to Amend the Caption of Document #8 to Plaintiff's Motion to Show Excusable Neglect Pursuant to Rule 6(b)(1)(B) Fed. R. Civ. P. and Motion to Filed Amended Complaint Pursuant to Rule 15(a) [Doc. #14, filed 09/13/2012] (the "Motion"). The Motion is DENIED.
By an Order [Doc. # 4] entered on May 14, 2012, I required the plaintiff to file within 30 days (or by June 14, 2012) an amended complaint that complied with the directives of the Order. I warned the plaintiff that his failure to file an amended complaint as ordered would result in the dismissal of the claims against defendants Davis and Duling. Order [Doc. # 4] at p. 4. No amended complaint was received, and defendants Davis and Duling were dismissed as parties by an Order entered on July 5, 2012. Order [Doc. # 5] at p. 9.
The Order was entered during the court's initial review under D.C.COLO.LCivR 8.2.
On July 18, 2012, the plaintiff requested additional time to comply with the Order [Doc. #4] that he amend the complaint to save his claims against defendants Davis and Duling. I denied the motion stating that it "comes too late because those defendants already have been dismissed."
The plaintiff again seeks additional time to comply with the order to amend his Complaint. The plaintiff's request is denied for the same reason.
At this point in the litigation, the plaintiff must amend his Complaint pursuant to Rule 15, Fed. R. Civ. P. Rule 15 provides that a complaint may be amended once as a matter of course within 21 days after serving it, or "if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Id. at 15(a)(2).
The defendants filed an Answer to the Complaint on October 20, 2012. Therefore, the plaintiff must either obtain consent from the defendants or file a motion seeking leave of court to amend his Complaint.
If the plaintiff files a motion to amend, he must attach the proposed amended complaint to the motion. The proposed amended complaint shall be titled Amended Prisoner Complaint. The plaintiff may not incorporate by reference his original Complaint into the amended complaint. The amended complaint must stand alone; it must contain all of the plaintiff's claims. Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (stating that "an amended complaint supercedes an original complaint and renders the original complaint without legal effect").
IT IS ORDERED that the Motion [Doc. #14] is DENIED WITHOUT PREJUDICE. Any future attempt to amend the Complaint must comply with this order.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge