United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, United States District Judge.
the Court is Plaintiff Donald Ray Hall's pro se
“Motion For Leave of The Court to Amend And Supplement
Complaint” (Docket Number (DN) 63). Defendants filed a
response to the motion (DN 68), and Plaintiff filed a reply
(DN 72). For the reasons stated below, the motion will be
stage of the proceeding, Plaintiff “may amend [his]
pleading only with the opposing party's written consent
or the court's leave.” Fed.R.Civ.P. 15(a)(2).
Defendants have not consented to Plaintiff's proposed
amendment and supplement; thus, the Court must grant leave
for Plaintiff to amend or supplement his complaint. The
decision to grant a motion for leave to amend is within the
sound discretion of the district court. Perkins v. Am.
Elec. Power Fuel Supply, Inc., 246 F.3d 593, 604 (6th
Cir. 2001). “The court should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). However,
“‘[a] motion to amend a complaint should be
denied if the amendment is brought in bad faith, for dilatory
purposes, results in undue delay or prejudice to the opposing
party, or would be futile.'” Colvin v.
Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (quoting
Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.
proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.”
Skipper v. Clark, 150 F.Supp.3d 820, 829 (W.D. Ky.
2015) (citing Rose v. Hartford Underwriters Ins.
Co., 203 F.3d 417, 420 (6th Cir. 2000)). Rule 12(b)(6)
allows the court to make an assessment as to whether the
plaintiff has stated a claim upon which relief may be
granted. Fed.R.Civ.P. 12(b)(6). In determining whether a
complaint fails to state a claim, the “district court
must (1) view the complaint in the light most favorable to
the plaintiff and (2) take all well-pleaded factual
allegations as true.” Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th
Cir. 2009) (citations omitted)). “But the district
court need not accept a ‘bare assertion of legal
conclusions.'” Id. (quoting Columbia
Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.
1995)). “[N]aked assertions devoid of further factual
enhancement” are insufficient to “state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
The court's duty “does not require [it] to conjure
up unpled allegations, ” McDonald v. Hall, 610
F.2d 16, 19 (1st Cir. 1979), or to create a claim for a
plaintiff. Clark v. Nat'l Travelers Life
Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To
command otherwise would require the Court “to explore
exhaustively all potential claims of a pro se
plaintiff, [and] would also transform the district court from
its legitimate advisory role to the improper role of an
advocate seeking out the strongest arguments and most
successful strategies for a party.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
15(d) of the Federal Rules of Civil Procedure governs when a
party may supplement a pleading. The Rule states that upon
motion of a party, “the court may, on just terms,
permit a party to serve a supplemental pleading setting out
any transaction, occurrence, or event that happened after the
date of the pleading to be supplemented.” Fed.R.Civ.P.
15(d). The standard for granting leave to supplement under
Rule 15(d) is the same as the standard governing leave to
amend under Rule 15(a)(2). Spies v. Voinovich, 48
Fed.Appx. 520, 527 (6th Cir. 2002); Glatt v. Chicago Park
Dist., 87 F.3d 190, 194 (7th Cir. 1996).
REQUEST TO AMEND
motion, Plaintiff requests the Court to allow him to amend
his complaint. In this portion of his motion, he states as
Plaintiff requests leave of the court to amend his fourth
complaint wherein this court dismissed Teresa Turner as a
defendant on a claim that she violated Plaintiff's
Constitutional Fifth Amendment right when she dismiss his
grievance alleging she, Atkin, Warden Aaron Smith and Deputy
Warden Anna Valentine violated Plaintiff right when they
barred him from the legal services at KSR in 2015 (from July
thru Nov.). . . . [H]owever, Plaintiff avers that the context
of the Fourth complaint reflects that the Plaintiff had filed
a grievance on the above named Defendant alleging they either
retaliated against the Plaintiff while Plaintiff was
exercising his constitutional rights of freedom of speech and
access to the courts or they failed to exercise their
supervisory authority to intervene when they were made aware
of the unauthorized acts of Atkin and Turner thru
correspondences to Warden Smith and response in behalf of
Smith by Valentine. . . . Plaintiff requests this court to
allow him with leave to amend his fourth complaint to include
a retaliation claim committed against him by Atkin, Turner,
Smith, and Valentine based on the context of the fourth
complaint and evidence.
states that this is not “a request to add new
defendants to his claim but rather or in effect a request to
reinstate them as defendants wherein, the court dismiss them
as defendants in its Nov. 28, 2016, Memorandum Opinion and
Order.” Plaintiff further asserts as follows:
[T]he court erred dismissing Smith and Turner as defendants
which, Plaintiff now avers this court should correct its
error and reinstate Smith and Turner as defendants as well as
adding Valentine as she knew of the incidents. Plaintiff
further requests this court to reinstate his claim against
Teresa Turner, Warden Smith and add deputy Warden Anna
Valentine and Commissioner Rodney Ballard as defendants to
Plaintiff's fourth claim and to construe the complaint to
include a retaliation claim involving Turner as well as
Smith, Valentine, and Ballard.
unclear what Plaintiff seeks the Court to do. Plaintiff
repeatedly refers to his “fourth complaint.” A
review of the docket of this case reveals no such document.
Plaintiff is probably referring to what he characterized in
his amended complaint as a “fourth claim” (DN 6,
p. 4). The Court addressed this fourth claim in its November
28, 2016, Memorandum Opinion and Order (DN 13, p. 7). As to
this claim, Plaintiff stated in his prior amended complaint
Plaintiff also request leave of the court to include a fourth
claim against Unit Administrator Legal and Grievance
Coordinator Teresa Turner for Malfeasance, Misfeasance or
Nonfeasance of her duty when she used her authority to deny
[Plaintiff's] grievance of retaliation against her and
the other parties/defendants of interest in Plaintiff's
1983 complaint now before this Court. Defendant Abused her
position of authority to deny Plaintiff of due process to
exercise his right to grieve a wrongful act against him by
state employees wherein, Ms. Turner's actions is a direct
violation of section 1 and 2 of the Ky. Const. as well as the
First, Fifth and Fourteenth Amendments of the U.S. Const.
when she arbitrarly denied my grievance as non-grievable.
(DN 6, pp. 5-6). There are no factual allegations in the
fourth claim as to the people Plaintiff requests in the
present motion to be added to the complaint. Further, the
present motion to amend and supplement does not contain any
factual allegations against Atkin, Turner, Smith, Valentine,
or Ballard. Plaintiff states only that he filed a grievance
that involved these people and alleges that Valentine knew of
the “incidents.” Plaintiff must provide
sufficient facts to give each Defendant fair notice of
Plaintiff's claims against them, Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (2002), and
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556
U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
refers to various exhibits but fails to set forth any factual
allegations as to Atkin, Turner, Smith, Valentine, or
Ballard. The Court is not required to wade through exhibits
to find claims. See Jinadu v. Fitzgerald, No.
99-4259, 2000 WL 1359640, at *1 (6th Cir. Sept. 15, 2000)
(“The district court's duty to construe
Jinadu's pro se pleadings liberally did not obligate it
to analyze attachments to Jinadu's complaint in order to
speculate about the claims Jinadu may be attempting to
bring.”); Young Bey v. McGinnis, No. 98-1930,
1999 WL 776312, at *1 (6th Cir. Sept. 23, 1999) (“[A]t
the conclusion of each section, [the plaintiff] refers the
court to an attachment consisting of a minimum of fifty
pages. The district court's duty to ...