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Hall v. Thompson

United States District Court, W.D. Kentucky, Louisville Division

April 2, 2018

DONALD RAY HALL, Plaintiff,
v.
LADONNA THOMPSON et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, United States District Judge.

         Before 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 denied.

         At this 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. 1995)).

         “A 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).

         Rule 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).

         I. REQUEST TO AMEND

         In his motion, Plaintiff requests the Court to allow him to amend his complaint. In this portion of his motion, he states as follows:

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.

         Plaintiff 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.

         It is 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 as follows:

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)).

         Plaintiff 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 ...


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