United States District Court, E.D. Kentucky, Central Division, Frankfort
MAGISTRATE JUDGE'S REPORT AND
B. Atkins United States Magistrate Judge
matter comes before the undersigned following the Court's
referral pursuant to 28 U.S.C. § 636(b) to conduct all
further proceedings, including preparing findings of fact and
conclusions of law on any dispositive motions. [R. 17]. The
Plaintiff filed a motion to add three additional defendants
to this litigation, alleging that they have failed to comply
with the Franklin County Regional Jail's policies. [R.
29]. The Defendant opposes the motion, asking that it be
denied. [R. 32]. Having considered the record and for the
reasons that follow, the Court will recommend that
Austin's motion be DENIED.
Court is obligated to broadly construe Austin's motion,
evaluating his argument according to “less stringent
standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520 (1972);
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011). Thus, his “Motion to Add Defendants” will
be construed as a motion for leave to amend his complaint.
Also, while pro se litigants are afforded
significant leeway, they must still comply with the
procedural rules that govern civil cases. See McNeil v.
United States, 508 U.S. 106, 113 (1993); Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989) (Pro se
litigants are not exempt from the requirements of the Federal
Rules of Civil Procedure.). According to Federal Rule of
Civil Procedure 15(a);
(1) A party may amend its pleading once as a matter of course
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.
(2) In all other cases, a party may amend its pleading only
with the opposing party's written consent or the
court's leave. The court should freely give leave when
justice so requires.
Fed. R. Civ. P. 15(a)(1)-(2).
case, Plaintiff's complaint was amended by the Court to
include Franklin County, Kentucky, as the sole Defendant on
December 12, 2018. [R. 8]. A summons was issued and returned
executed on January 3, 2019. [R. 9; R. 12]. Defendant
Franklin County, Kentucky, submitted its Answer to
Plaintiff's Complaint on January 4, 2019. [R. 11]. Since
that time, 21 days have elapsed and no motion has been filed
under Rule 12(b), (e), or (f). Thus, Plaintiff's current
motion to amend his complaint, [R. 29], requires this
Court's leave pursuant to Fed.R.Civ.P. 15(a)(2). Leave
will freely be given if Plaintiff can show that justice so
allowing amendment of a complaint is a matter within the
sound discretion of the court, Zenith Radio Corp. v.
Hazeltine Research, Inc., 40 U.S. 321, 330 (1971), the
Supreme Court has stated that Rule 15(a)'s mandate to
freely allow amendments must be heeded. Foman v.
Davis, 371 U.S. 178, 182 (1962). Also, “(i)mplicit
in this statement is that the district court must be able to
determine whether ‘justice so requires,' and in
order to do this, the court must have before it the substance
of the proposed amendment.” Betty v. Heyns,
No. 1:15-CV-445, 2018 WL 3062003, at *4 (W.D. Mich. Feb. 20,
2018) (citing Roskam Banking Co. v. Lanham Machinery
Co., 288 F.3d 895, 906 (6th Cir. 2002)). A motion to
amend a complaint can be procedurally insufficient where the
Plaintiff fails to tender a proposed amended complaint with
his motion, because without the amended complaint “the
court cannot adequately assess the appropriateness of
permitting the amendment.” Lancaster v. United
States, No. 6:16-CV-175-DCR, 2017 WL 937950, at *3 (E.D.
Ky. March 9, 2017). “That shortcoming alone is
sufficient reason enough to deny the motion.”
motion to amend his complaint does not include a proposed
amended complaint. See [R. 29]. Specifically, Austin
fails to include any new factual allegations against Sgt.
Mulder, Chief Abrams, or Captain Wilson in his motion to
amend his complaint. He only contends that each of them
somehow broke “FCRJ policy” and “therefore
should be held personally liable” for their actions.
[R. 29]. Thus, without more, Austin cannot show that justice
requires allowing him to amend the complaint in this action.
Therefore, Plaintiff has failed to carry the burden that is
required to grant his motion. Accordingly, IT IS
HEREBY RECOMMENDED that Plaintiff s Motion, [R. 29],
be DENIED without prejudice. The parties are
directed to 28 U.S.C. § 636(b)(1) for a review of appeal
rights governing this Report and Recommendation.
Particularized objections to this Report and Recommendation
must be filed within fourteen (14) days from the date of
service thereof or further appeal is waived. United
States v. Campbell,261 F.3d 628, 632 (6th Cir. 2001);
Thomas v. Ann,728 F.2d 813, 815 (6th Cir. 1984).
General objections or objections that require a judge's
interpretation are insufficient to ...