Free Order on Motion to Amend/Correct - District Court of Arizona - Arizona

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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Stuart Othello Carter, ) N0. 04-0685-PHX-ROS
10 Plaintiff, i ORDER
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Douglas Freet, et al., )
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Defendant. )
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17 Pending before the Court are nmnerous motions filed by Plaintiff Stuart Othello Carter
18 seeking to amend his complaint. F or the following reasons, those motions will be denied.
19 Plaintiff filed his original complaint on April 5, 2004. (Doc. 1) That complaint
20 contained three counts. Counts I and II of the complaint were dismissed after screening by
21 the Court but Count III survived screening. That Count alleged Defendants retaliated against
22 Plaintiff by bringing a false disciplinary charge against him which resulted in his being
23 terminated from his prison employment. On December 1, 2005, Count 111 was dismissed due
24 to Plaintiffs failure to exhaust his administrative remedies. (Doc. 37) On December 9, 2005,
25 Plaintiff filed a "Motion for Leave to Amend and Lodge a Proposed Amended Complaint."
26 (Doc. 40) Four days later, Plaintiff filed another request for "Leave to Amend and Lodge
27 Complaint." (Doc. 41) On January 13, 2006, Plaintiff filed yet another "Motion for Leave
28 to Amend Original Complaint and Lodge Proposed Complaint." (Doc. 42) Finally, on
Ca e 2:04-cv-00685-ROS-VAIVI Document 44 Filed O4/12/2006 Page 1 of 2

1 February 2, 2006, Plaintiff requested the Court strike his previous motions for leave to amend
2 his complaint. In that filing Plaintiff also requested the Court grant a revised motion to
3 amend his complaint.
4 Plaintiff has voluntarily withdrawn three of his four motions for leave to amend his
5 complaint. Accordingly, those three motions will be denied. Regarding the motion for leave
6 to amend which is still pending, a pro se litigant "must follow the same rules of procedure
7 that govern other litigants? King v. Atiyeh, 814 F.3d 565, 567 (9th Cir. 1987). The Court
8 has already entered a judgment of dismissal of Plaintiffs action. At this point in the case, the
9 only method available for Plaintiff to challenge that judgment is a motion filed pursuant to
10 Rule 60(b) of the Federal Rules of Civil Procedure. g Lindauer v. Rogers, 91 F .3d 1355,
ll 1357 (9th Cir. 1996) ("[O]nce judgment has been entered in a case, a motion to amend the
12 complaint can only be entertained if the judgment is first reopened under a motion brought
13 under Rule 59 or 60."). Plaintiff might also choose to file a new action containing the claim
14 alleged in his most recently proposed amended complaint. The Court expresses no opinion
15 regarding which avenue may be more advantageous to Plaintiff. E Pliler v. Ford, 542 U.S.
16 225, 231 (2004) (court should not advise litigants how to cure defects). The Court will deny
17 Plaintiffs motion to amend as procedurally improper.
18 Accordingly,
19 IT IS ORDERED Plaintiffs Motions to Amend (Doc. 40, 41, 42) are DENIED.
20 IT IS FURTHER ORDERED Plaintiffs Motion to Strike and Motion to Amend
21 (Doc. 43) is GRANTED IN PART AND DENIED IN PART. Plaintiff is permitted to
22 withdraw his previous motions to amend but the motion to amend is denied.
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DATED ·¢ a , .
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United States District Judge
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Case 2:04-cv-00685-ROS-VAM

Document 44

Filed 04/12/2006

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Case 2:04-cv-00685-ROS-VAM

Document 44

Filed 04/12/2006

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