Opinion
Civil Action No. 3:09-CV-301 JVB.
December 16, 2009
OPINION AND ORDER
Demond Carr, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983 alleging that prison officials were deliberately indifferent in treating his skin condition. This court dismissed the complaint pursuant to 28 U.S.C. § 1915A, because the claim as presented did not state a claim for relief under the Eighth Amendment. (DE 12.)
Presently before the court is Carr's timely motion to amend or alter the judgment pursuant to Federal Rule of Civil Procedure 59. (DE 14.) Based on the additional information provided by Carr in his motion, it appears that he might be able to state a claim under the Eighth Amendment if he files an amended pleading. Accordingly, in the interests of justice, the court will vacate the judgment and afford Carr an opportunity to present his claim in an amended pleading.
Carr has also filed a motion seeking to "present evidence." (DE 15.) This motion will be denied, as the pleading stage is not the appropriate time to present evidence. However, Carr may attach to his amended complaint whatever documentary evidence he believes supports his claim. Finally, Carr has filed a petition for leave to proceed in forma pauperis on appeal. (DE 17.) The petition will be denied as moot, since the judgment has now been vacated and there is no basis for Carr to proceed with an appeal.
For these reasons, the court:
(1) GRANTS the motion for reconsideration (DE 14);
(2) VACATES the judgment (DE 13);
(3) DENIES the motion to present evidence (DE 15);
(4) DENIES the petition for leave to appeal in forma pauperis (DE 17) as moot;
(5) DIRECTS the clerk of court to place this cause number on a blank Prisoner 42 U.S.C. § 1983 Complaint form and send it to Demond Carr;
(6) GRANTS Demond Carr to and including January 29, 2009, to file an amended pleading that sets forth his Eighth Amendment claim; and
(7) CAUTIONS Demond Carr that if he does not respond by the above deadline, this case will be dismissed without further notice.
SO ORDERED.