Opinion
Civil Action No. 09-cv-01139-MSK-BNB.
April 20, 2010
ORDER
This matter arises on the following papers (the "Papers") filed by the plaintiff: Docs. ##50, 53, 55, 59, 66, 67, 68, 74, 75, 78, 79, 80, 82, and 83. The Papers are STRICKEN.
The Papers are inappropriate for several reasons. Many of the Papers contain rambling accounts of prison life and do not request any specific relief. Indeed, two of the Papers are simply holiday greetings. The plaintiff may not submit to the court documents that do not serve a specific purpose with regard to his case.
Some of the Papers appear to request an order from the court, but they are not submitted in the form of a motion. The Federal Rules of Civil Procedure require that a request for a court order must "state with particularity the grounds for seeking the order" and must "state the relief sought." Fed.R.Civ.P. 7(b)(1)(B) and (C). In addition, "a request for a court order must be made by motion." Fed.R.Civ.P. 7(b)(1). "The rules governing captions and other matters of form in pleadings apply to motions and other papers." Fed.R.Civ.P. 7(b)(2). The plaintiff may not seek a court order through letters and notices. All requests must be made in the form of a motion, and the request must be titled as a motion.
With the exception of documents #79, 80, and 82, the plaintiff does not certify that he served a copy of the Papers on counsel for the defendant. Copies of papers filed in this court must be served on counsel for all other parties (or directly on any party acting pro se) in compliance with Fed.R.Civ.P. 5. Rule 5 provides that all pleadings filed after the original complaint and all written motions, notices, demands, or any similar paper must be served on every party. Fed.R.Civ.P. 5(a). "If a party is represented by an attorney, service under this rule must be made on the attorney. . . ." Fed.R.Civ.P. 5(b). Service upon other parties may be by mail. Id. Proof that service has been made is provided by a certificate of service. Id. at 5(d). This certificate should be filed along with the original papers and should show the day and manner of service. Id.
In documents #79, 80, and 82, the plaintiff certifies that he served a copy of the documents on the defendant and on defendant's counsel. Because the defendant is represented by counsel, the plaintiff must serve all papers on counsel for the defendant, not on the defendant.
In addition, many of the Papers are addressed to me and/or the district judge. The local rules of this Court prohibit ex parte communication with judicial officers:
In the absence of previous authorization, no attorney or party to any proceeding shall send letters, pleadings or other papers or copies directly to a judicial officer. Unless otherwise instructed, all matters to be called to a judicial officer's attention shall be submitted through the clerk, with copies served on all other parties or their attorneys.
D.C.COLO.LCivR 77.2.
Several of the Papers appear to be an attempt to amend the Complaint. The plaintiff may not amend his Complaint by simply filing piecemeal amendments and supplements. Rather, he must obtain written consent from the defendant or he must file a motion with the court. Fed.R.Civ.P. 15(a). The motion to amend must detail the proposed amendments and the reasons why such amendments are necessary. In addition, the plaintiff must attach the proposed amended complaint to the motion. 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") (internal quotations and citations omitted).
Finally, the plaintiff has submitted exhibits with several of the Papers. The exhibits are not submitted in support of any pending matter in this case. Discovery materials shall not be filed with the Court. Fed.R.Civ.P. 5(d)(1).
IT IS ORDERED that Docs. #50, 53, 55, 59, 66, 67, 68, 74, 75, 78, 79, 80, 82, and 83 are STRICKEN.
IT IS FURTHER ORDERED that all future applications to the court for relief shall be submitted in the form of a motion in compliance with Rule 7 and shall be served on counsel for the defendants in accordance with Rule 5.
IT IS FURTHER ORDERED that any attempts by the plaintiff to amend his Complaint are DENIED WITHOUT PREJUDICE, subject to compliance with this Order.