Barnett v. Patane ( 2019 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION 1:19-cv-48-FDW JAMES ANTHONY BARNETT, JR., ) ) Plaintiff, ) ) vs. ) ) ORDER JEFFREY DEAN PATANE, et al., ) ) Defendants. ) ___________________________________ ) THIS MATTER comes before the Court on pro se Plaintiff’s Motion to Receive Legal Documents, (Doc. No. 18), and Motion to for Leave to Amend, (Doc. No. 19). First, Plaintiff appears to request that a copy of this Court’s Local Civil Rules be mailed to him, arguing that he is indigent and cannot pay the fee to receive the Local Civil Rules, and he needs to know and understand the rules so that he can abide by them. (Doc. No. 18 at 2). There is no provision in the in forma pauperis statute for the payment by the government of the costs of deposition transcripts, discovery costs, or any other litigation expenses. See 28 U.S.C. § 1915. This Court’s Local Civil Rules can be viewed without charge on the Court’s website under the “Court Info” tab. See https://www.ncwd.uscourts.gov/court-info/local-rules-and-orders/local-rules. Plaintiff’s “Motion to Receive” will therefore be denied. Second, Plaintiff asks the Court for leave to file a Second Amended Complaint. A plaintiff may amend the complaint once as a matter of course within 21 days after serving the complaint, or within 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), which is earlier. Fed. R. Civ. P. 15(a)(1). A plaintiff may subsequently amend with permission from the court which “shall be freely granted when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Fourth Circuit “ha[s] interpreted Rule 15(a) to provide that ‘leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.’” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). Plaintiff has already filed an Amended Complaint that passed initial review. He now seeks to file a Second Amended Complaint but he fails to attach a proposed Second Amended Complaint to his Motion. His Motion will therefore be denied without prejudice to file a Motion to Amend and a proposed Second Amended Complaint within 14 days of the date of this Order. Although Plaintiff is appearing pro se, he is required to comply with all applicable timeliness and procedural requirements, including the Local Rules of the United States District Court for the Western District of North Carolina and the Federal Rules of Civil Procedure. See, e.g., Mayle v. Felix, 545 U.S. 644, 664 (2005) (discussing relation back). Rule 8(a) of the Federal Rules of Civil Procedure requires pleadings to contain a “short and plain statement of the claim showing that the pleader is entitled to relief….” Fed. R. Civ. P. 8(a)(2). The proposed Second Amended Complaint must be on a § 1983 form, which the Court will provide, and it must refer to the instant case number so that it is docketed in the correct case. The proposed Second Amended Complaint must contain all claims Plaintiff intends to bring in this action, identify all defendants he intends to sue, and clearly set forth the factual allegations against each of them. Plaintiff may not amend his Complaint by merely adding defendants and claims in a piecemeal fashion. The Second Amended Complaint will supersede the Complaint and Amended Complaint it so that any claims or parties omitted from the Second Amended Complaint will be waived. See Young v. City of Mt. Ranier, 238 F.3d 567 (4th Cir. 2001). If Plaintiff fails to comply with this Order, the Court will proceed on the Amended Complaint that has already passed initial review. IT IS THEREFORE ORDERED that: (1) Plaintiff’s Motion to Receive Legal Documents, (Doc. No. 18), is DENIED. (2) Plaintiff's Motion for Leave to Amend, (Doc. No. 19), is DENIED without prejudice to file a Motion to Amend and proposed Second Amended Complaint within 14 days of this Order. If Plaintiff fails to comply with this Order, the case will proceed on the Amended Complaint, (Doc. No. 12). August 7, 2019 Frank D. Whitney Chief United States District Judge ~“#*"