Opinion
Civil Action No. 06-cv-00759-LTB-CBS.
April 25, 2007
ORDER
This civil action comes before the court on: (1) Mr. Whitington's Motion to Request Leave to File and/or Submitt [sic] an Amended and Supplemental Complaint Pursuant to Rule 15(a) and (d) F.R.C.P." (filed April 23, 2007) (doc. # 73); and (2) Mr. Whitington's "Notice of Service and Request for Hearing via Satelite [sic] to Hear Plaintiff's Request for Temporary Restrining [sic] Order and/or Preliminary Injunction" (filed April 23, 2007) (doc. # 74). Pursuant to the Order of Reference dated February 7, 2007 (doc. # 44) and the memorandum dated April 24, 2007 (doc. # 76), these matters were referred to the Magistrate Judge. The court has reviewed the matters, the entire case file, and the applicable law and is sufficiently advised in the premises.
1. Mr. Whitington may amend his "Amended Prisoner Complaint "only by leave of court or by written consent of the adverse party. . . ." Fed.R.Civ.P. 15(a). The court may deny a motion to amend a complaint for failure to submit the proposed amendment. See Zaidi v. Ehrlich, 732 F.2d 1218, 1220 (5th Cir. 1984) (district court should have held motion to amend in abeyance pending submission of plaintiff's proposed amendment); Bownes v. City of Gary, Indiana, 112 F.R.D. 424, 425 (N.D. Ind. 1986) ("common sense" dictates that a party seeking leave to amend should accompany his motion with a copy of the proposed amended complaint); Williams v. Wilkerson, 90 F.R.D. 168, 170 (E.D. Va. 1981) (where plaintiff sought leave to amend, a copy of the proposed amended pleading must be attached to the motion). Mr. Whitington has not submitted a copy of his proposed [Second] Amended Complaint to the court. The court may properly deny Mr. Whitington's request to again amend his complaint, based on Mr. Whitington's failure to submit a copy of the proposed [Second] Amended Complaint to the court.
2. In his "Notice of . . ., "Mr. Whitington requests "that this court set an evidentiary hearing" on his "request for preliminary injunction or temporary restraining order." At the appropriate time, the court will determine whether a hearing is necessary on any of the matters pending in this action. Should the court set any hearings, Mr. Whitington may participate in such hearing by telephone. At this time, the court declines to set any hearings in this action.
Accordingly, IT IS ORDERED that:
1. Mr. Whitington's Motion to Request Leave to File and/or Submitt [sic] an Amended and Supplemental Complaint Pursuant to Rule 15(a) and (d) F.R.C.P." (filed April 23, 2007) (doc. # 73) is DENIED without prejudice for failure to submit a copy of the proposed [Second] Amended Complaint.
2. To the extent that Mr. Whitington's "Notice of Service and Request for Hearing via Satelite [sic] to Hear Plaintiff's Request for Temporary Restrining [sic] Order and/or Preliminary Injunction" (filed April 23, 2007) (doc. # 74) requests that the court set a hearing, the request is DENIED.