Summary
striking proposed amended complaint for failure to comply with local rules
Summary of this case from Spencer v. BrottOpinion
No. CV-17-03421-PHX-GMS (ESW)
08-21-2018
David Marmolejo, Plaintiff, v. Paul Penzone, et al., Defendants.
ORDER
Plaintiff David Marmolejo, who is confined by the Texas Department of Criminal Justice, in the C.T. Terrell Unit, in Rosharon, Texas, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The Court ordered Defendants Alverez and CS105 to answer the threat to safety claim in Count I of the Complaint and dismissed Count II and Defendant Penzone without prejudice. (Doc. 7 at 10). Defendants answered the Complaint. (Doc. 12).
On April 6, 2018, Plaintiff filed a document entitled "Civil Right's [sic] Complaint by a Prisoner" which the Court construes as a motion to amend the Complaint and proposed Amended Complaint. (Doc. 9). Plaintiff also filed a "Reply to Defendants Answer With Leave." (Doc. 15). The Court will strike Plaintiff's Reply as an unauthorized filing. The Court will deny without prejudice Plaintiff's motion to amend his Complaint and strike the proposed Amended Complaint.
I. DISCUSSION
A. "Civil Right's [sic] Complaint by a Prisoner" (Doc. 9)
"A district court has discretion to adopt local rules. . . . Those rules have 'the force of law.'" Hollingsworth v. Perry, 558 U.S. 183 (2010) (citation omitted). Hence, both the parties and the Court are bound by the local rules. LRCiv. 83.3(c) (1) ("Anyone appearing before the court is bound by these Local Rules."); Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994). A district court's departure from its local rules is justified only if the effect is "so slight and unimportant that the sensible treatment is to overlook [it]." Id. (internal quotation marks and citation omitted).
Local Rule 15.1(a) provides that:
A party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion, which must indicate in what respect it differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added. The proposed amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits.LRCiv 15.1(a) (emphasis added).
Here, Plaintiff's proposed Amended Complaint (Doc. 9) does not indicate in what respect it differs from the Complaint (Doc. 1). Plaintiff has not bracketed or struck through the text to be deleted and has not underlined the text to be added. Plaintiff's proposed Amended Complaint (Doc. 9) therefore fails to comply with Local Rule 15.1(a), LRCiv. Plaintiff's failure to comply with Local Rule 15.1(a) hinders the Court's ability to compare the Complaint and Amended Complaints. Therefore, Plaintiff's motion for leave to file an Amended Complaint (Doc. 9) will be denied without prejudice. The proposed Amended Complaint (Doc. 9) shall be stricken. Plaintiff may refile a Motion for Leave to Amend his Complaint and proposed Amended Complaint that complies with Local Rule 15.1(a), LRCiv.
U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 n.1 (9th Cir. 1985), superseded by statute on other grounds as recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996) ("Contrary to the defendants' assertions, Dominator's motion for leave to amend its complaint was properly treated as a nondispositive motion."); Morgal v. Maricopa County Bd. of Sup'rs, 284 F.R.D. 452, 458 (D. Ariz. 2012) ("Generally, a motion for leave to amend the pleadings is a nondispositive matter that may be ruled on by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1).") (citation and internal quotation marks omitted).
B. "Reply to Defendants Answer With Leave." (Doc. 15)
Plaintiff has responded to Defendants' Answer by filing a reply. The Federal Rules of Civil Procedure do not authorize the filing of a reply to Defendants' Answer. See Fed. R. Civ. P. 7 (a) (specifically delineating pleadings that a party may file); LRCiv 7.2 (m) (stating that the Court may strike a pleading that is not authorized by rule, statute, or court order). Because Plaintiff's Reply is an unauthorized pleading, the Court will strike it.
II. CONCLUSION
For the reasons set forth herein,
IT IS ORDERED denying without prejudice Plaintiff's "Civil Right's [sic] Complaint by a Prisoner" which the Court construes as a motion to amend the Complaint. (Doc. 9). The proposed Amended Complaint contained therein is hereby stricken. (Doc. 9 at 2-5).
IT IS FURTHER ORDERED striking Plaintiff's "Reply to Defendants Answer With Leave." (Doc. 15).
Dated this 21st day of August, 2018.
/s/_________
Eileen S. Willett
United States Magistrate Judge