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: 5 2003
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE HENRY R. TAYLOR, JR. PRO SE PLAINTIFF.
" ""
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v.
KATHLEEN D. FELDMAN et. al.,
Civil A. No. O~4 JJF
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NOTICE OF APPEAL
Notice is hereby given that plaintiff Henry R. Taylor Jr. moves to appeal to the United States Court of Appeals for the Third Circuit from attached order entered on this action on February 1, 2008
(~OR~~
~. TAYt:~R.
Delaware Correctional center 1181 Paddock Road Smyrna, DE. 19977
Dated:
2-15- 2008
Case 1:07-cv-00244-JJF
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HENRY R. TAYLOR, JR.
Plaintiff, v. KATHLEEN D. FELDMAN, JEANNE K.: CAHILL, PATRICK J. O'RP.RE, SHARON AGNEW, and JAMES FRAZIER, Defendants.
MEMORANDUM ORDER
Civ. Action No. 07-244-JJF
I .
BACKGROUND
Plaintiff Harry R. Taylor, Jr.
("plaintiff"), an inmate at
the Delaware Correctional Center filed this civil rights action pursuant to 42 U.S.C. § 1983. He appears pro se and was granted
(D.l. 4.)
in forma pauperis status pursuant to 28 U.S.C. § 1915.
Plaintiff alleges violations of his constitutional rights to access the courts and due process, and violations of the Delaware constitution and Delaware laws. More specifically, he alleges
that Defendants Kathleen D. Feldman, Jeanne K. Cahill, and Patrick J. O'Hare, all court reporters within a local government entity, failed to retain and/or destroyed court files. He makes
the same allegations against Defendants Sharon Agnew and James Frazier. The Superior Court of Delaware, New Castle County
("Superior Court") was also named as a defendant, but it was dismissed from this case on June 18, 2007 by reason of its Eleventh Amendment immunity.
(D. I. 7, 8.)
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Now before the Court are Plaintiff's Motion For Extension Of Time to file a response to Defendants' Answer (D.I. 19) and Motion For Leave To File An Amended Complaint (D.I. 23).
II.
MOTION FOR EXTENSION OF TIME
The Court will deny as moot Plaintiff's Motion For Extension
Of Time to file a response to Defendants' Answer.
(D.I.19.)
Plaintiff filed a response to Defendants' Answer on September 11, 2007, even though it was not necessary. (D. I. 24.)
. III.
MOTION TO AMEND
Plaintiff moves to amend his Complaint to add as a defendant
the Attorney General for the State of Delaware, Beau Biden ("Attorney General"). The motion indicates that the At torney
.General will be sued in his individual and official capacity. Plaintiff states that he has discovered a sufficient close nexus between local, county, and state governments and the challenged action of Defendants as outlined in the original Complaint. Plaintiff also asks the Court to reinstate the previously dismissed claim against the Superior Court. He argues that a New
Castle County local government entity is a person within the meaning of 42 U.S.C.
§
1983 and, therefore, the Superior Court
should not have been dismissed from the proceedings. "After amending once or after an answer has been filed, the
plaintiff may amend only with leave of the court or the written consent of the opposing party, but 'leave shall be freely given
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when justice so requires.'" (3d Cir. 2000)
Shane v. Fauver, 213 F.3d 113, 115 The Third
(quoting Fed. R. Civ. P. IS(a)).
Circuit has adopted a liberal approach to the amendment of pleadings to ensure that "a particular claim will be decided on the merits rather than on technicalities." Co., 921 F.2d 484, 486-87 Od Cir. 1990) Dole v. Arco Chem.
(citations omitted). See Dover Steel Co. ,
Amendment, however, is not automatic.
Inc, v. Hartford Accident and Indem., 151 F,R.D. 570, 574 (E,D. Pa. 1993). Leave to amend should be granted absent a showing of
"undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962); See also Oran v. Futility of
Stafford, 226 F.3d 275, 291 Od Cir. 2000),
amendment occurs when the complaint, as amended, does not state a claim upon which relief can be granted. See In re Burlington If
Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). the proposed amendment "is frivolous or advances a claim or defense that is legally insufficient on its face, deny leave to amend.
~,
the court may
Harrison Beverage Co. v. Dribeck Importers,
133 F.R,D. 463, 469 (D.N,J, 1990). The Court will deny the Motion To Amend on the basis of
futility.
Plaintiff provides no facts to support his claim
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against the Attorney General.
Indeed, it appears that he wishes
to name the Attorney General as a defendant based upon his supervisory position. It is well-established that supervisory
liability cannot be imposed under 1983 on a respondeat superior theory. See Monell v. Deoartment of Social Services of City of (1978); Rizzo v. Goode, 423 U.S. 362
New York, 436 U.S. 658 (1976) .
Finally, Plaintiff moves to reinstate the Superior Court as a defendant arguing that the Superior Court should be included in the definition of persons subject to liability under § 1983. Plaintiff's position is contrary to settled law. The Superior
Court is not a person for purposes of a § 1983 action and, in any event, it is entitled to sovereign immunity.
Co~~on
Malarik v. Court of
Pleas of Beaver County, Pennsylvania, No. 05-1069, 145 It will not be reinstated as
Fed. Appx. 756, 757 (3d Cir. 2005). a defendant.
Plaintiff proposes to amend his Complaint to add a claim that is not cognizable under § 1983 and to reinstate a previously dismissed Defendant. There is futility of amendment and,
therefore, the Court will deny the Motion.
IV.
CONCLUSION
NOW THEREFORE, IT IS HEREBY ORDERED this
~
day of
February, 2008, that: 1. The Motion For An Extension Of Time (0.1. 19) is DENIED
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as moot. 2. The Motion To Amend (D.l. 23) is DENIED as amendment
would be futile.
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Certificate of Service
I,
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,hereby certify that I have served a true
And correct cop(ies) of the attached:
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ upon the following parties/person (s):
TO:
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TO:
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TO:
TO:
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BY PLACING SAME IN A SEALED ENVELOPE, and depositing same in the United States Mail at the Delaware Correctional Center, Smyrna, DE 19977,
On this
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,200.1
Case 1:07-cv-00244-JJF
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