Opinion
Civil Action No. 06-cv-01222-EWN-KLM.
October 29, 2007
ORDER
This matter comes before the Court on Plaintiff's Motion to Introduce Supplemental Complaint, Assault on Plaintiff for Attempting to Exhaust Administrative Remedies In Regards to Punishment for Initiation of Plaintiff's Complaint Herein [Docket No. 33; filed July 26, 2007] ("Motion to Supplement"), and Motion for Correction of Named Defendants [Docket No. 56; filed September 10, 2007] ("Motion for Correction").
In his Motion to Supplement, Plaintiff seeks to introduce a supplemental complaint, alleging that on May 10, 2007, Warden L. Reid, Captain Miklich, Lt. Mathews, Sgt. Oates, C/O Colton, C/O Hamula, C/O Woolfolk, Dr. Craney, Nurse Rita and two John Does participated in an assault on Plaintiff in retaliation for his legal actions.
In relevant part, Fed.R.Civ.P. 15(d) provides that "[u]pon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented."
Leave to supplement a complaint should be given freely, based on the balancing of several factors, including futility, delay, bad faith, dilatory motive, repeated failure to cure deficiencies, and prejudice to the opposing party. Moore v. Reynolds, 153 F.3d 1086, 1116 (10th Cir. 1998) (citing Foman v. Davis, 371 U.S. 178, 181-82 (1962)).
On July 11, 2007, the Tenth Circuit Court of Appeals reversed the dismissal of Plaintiff's case, and remanded it to this Court for further proceedings [Docket No. 28]. Plaintiff then sought to file his "supplemental" complaint on July 26, 2007, only fifteen days later. According to Plaintiff, the supplement concerns events which have taken place since he filed his original complaint [Docket No. 3; filed June 27, 2006]. As Plaintiff's motion was made promptly and allegedly concerns subsequently occurring facts relating to his original claim of retaliation for grievances and prior lawsuits he has filed, this Court finds that there is good cause to allow the supplement. There is no evidence of delay, bad faith or prejudice to Defendants. Moore, 153 F.3d at 1116. Therefore, it is appropriate to accept Plaintiff's supplemental complaint for filing.
Plaintiff also requests that this Court enter an order compelling Defendants to preserve the audio-video recording taken of the alleged assault on Plaintiff on May 10, 2007. Insofar as the motion pertains to evidence at issue in the present proceeding, court-ordered preservation is not necessary given the protections afforded to parties in Fed.R.Civ.P. 26(b) 34.
Accordingly, Plaintiff's Motion to Introduce Supplemental Complaint, Assault on Plaintiff for Attempting to Exhaust Administrative Remedies In Regards to Punishment for Initiation of Plaintiff's Complaint Herein [Docket No. 33; filed July 26, 2007] is GRANTED in part and DENIED in part. His supplemental complaint is accepted for filing as of the date of this Order.
Plaintiff next requests that named Defendant "John Dow-Lieutenant" be corrected to read "Lieutenant Conway", and that named Defendant "C/O Santos" be corrected to read "DeSantos". Motion for Correction, p. 1.
IT IS HEREBY ORDERED that Plaintiff's Motion for Correction of Named Defendants [Docket No. 56; filed September 10, 2007 is GRANTED. The Clerk is directed to correct named Defendant "Lt. John Dow" to read "Lieutenant Conway", and named Defendant "C/O Santos" to read "DeSantos".