United States District Court, D. Kansas
CROW U.S. Senior District Judge.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. On August 30, 2017, the Court entered
an Order (Doc. 8) finding that proper processing of
Plaintiff's claims cannot be achieved without additional
information from the officials responsible for the operation
of the Thomas County Jail/Sheriff's Department. The Court
directed the officials to file a Martinez report.
See Martinez v. Aaron, 570 F.2d 317 (10th Cir.
1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th
Cir. 1991). The Martinez report was filed on October
24, 2017. (Doc. 16.) This matter is before the Court on the
following motions filed by Plaintiff on November 1, 2017:
Motion for Order to Transport (Doc. 21); Motion for Subpoena
(Doc. 22); Motion for Leave to Amend Complaint (Doc. 23); and
Motion for Declaration for Entry of Default (Doc. 24). The
Court denies Plaintiff's motions.
Motion for Order to Transport
motion for order to transport requests transportation
“with representation” to his court date
“whenever that may be.” Because Plaintiff's
complaint has not survived screening, and there are no
scheduled court dates, the motion is denied.
Motion for Subpoena
motion requests statements from various individuals and seeks
to have them appear whenever there is a hearing in this
matter. Plaintiff also seeks to have the Thomas County
Sheriff's Department “release the footage of the
incident.” The Court's previous Order directed the
Thomas County officials to include in the Martinez
report “[a]ny tapes of the incident underlying
Plaintiff's claims.” (Doc. 8, at 4.) The Order also
provides that “[n]o answer or motion addressed to the
Complaint shall be filed until the Martinez Report
requested herein has been prepared and filed”; and
“[d]iscovery by Plaintiff shall not commence until
Plaintiff has received and reviewed Defendants' answer or
response to the Complaint and the report required herein.
This action is exempted from the requirements imposed under
Fed.R.Civ.P. 26(a) and 26(f).” Id. Discovery
is premature, as Defendants have not filed an answer or
otherwise responded to the Complaint. Plaintiff's motion
Motion for Leave to Amend Complaint
motion states that his original complaint misnamed Defendant
Brandon Gaede as “Brodan Gaede, ” and
misidentified Defendant Jake Cox as
“sheriff/policeman” instead of “Deputy
Sheriff for the Thomas County Sheriff's
Department.” Plaintiff also seeks to add Samantha
Shepherd as a defendant, and to change a date in the factual
allegations in his original complaint. The Court will direct
the clerk to correct the name and title for Defendants Gaede
and Cox. The Court denies Plaintiff's motion to amend the
complaint. Although Plaintiff is entitled to amend the
complaint once as a matter of right (see Fed. R.
Civ. P. 15(a)(1)), he has not attached a proposed amended
complaint as required by D. Kan. Rule 15.1(a).
Plaintiff's motion is denied.
Court notes that Plaintiff also filed a “Supplemental
Complaint” on November 6, 2017. (Doc. 26.) Fed.R.Civ.P.
15(d) allows supplemental pleadings “on motion and
reasonable notice” for “any transaction,
occurrence, or event that happened after the date of the
pleading to be supplemented.” Plaintiff's proposed
supplement is largely illegible, but appears to recount the
events set forth in his original complaint.
order to add claims, significant factual allegations, or
change defendants, a plaintiff must submit a complete Amended
Complaint. See Fed. R. Civ. P. 15. An Amended
Complaint is not simply an addendum to the original
complaint, and instead completely supersedes it. Therefore,
any claims or allegations not included in the Amended
Complaint are no longer before the court. It follows that a
plaintiff may not simply refer to an earlier pleading, and
the Amended Complaint must contain all allegations and claims
that a plaintiff intends to pursue in the action, including
those to be retained from the original complaint.
Motion for Declaration for Entry of Default
seeks an entry of default because “more than 60 days
have elapsed since the date on which the Defendant Sheriff
Rod Taylor herein was served” and Defendant Taylor has
“failed to answer.” Defendant Taylor has filed a
response to the motion for entry of default (Doc. 25), noting
that the Court's previous Order at Doc. 8 provides that
the Defendants' answers are not due until 30 days
following receipt of the Martinez report.
See Doc. 8, at 3. Because the report was filed on
October 24, 2017, the answers are not due until November 24,
2017. Plaintiff's motion is denied.
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's motions (Docs. 21, 22, 23, and 24) are