Murphy v. Colorado Department of Corrections

Full title: DANIEL E. MURPHY, Plaintiff, v. COLORADO DEPARTMENT OF CORRECTIONS…

Court: United States District Court, D. Colorado

Date published: Jul 11, 2007

Civil Action No. 06-cv-01948-REB-BNB (D. Colo. Jul. 11, 2007)

Opinion

Civil Action No. 06-cv-01948-REB-BNB.

July 11, 2007

ORDER

BOYD BOLAND, Magistrate Judge

This matter is before me on the following motions filed by the plaintiff:

(1) Motion for Judgment on the Pleadings [Doc. #32, filed 6/4/07];

(2) Amended Motion for Judgment on the Pleadings [Doc. #35, filed 6/7/07];

(3) Unconstitutional Administrative Regulation and Treatment Program [Doc. #37, filed 6/18/07]; and

(4) Motion for Leave to Amend Complaint [Doc. #40, filed 7/9/07].

In his Motion for Judgment on the Pleadings, the plaintiff claims that he is entitled to judgment on the pleadings because the defendants have admitted all allegations and claims raised in the Complaint. In his Amended Motion for Judgment on the Pleadings, the plaintiff "moves this court to litigate further allegations brought by the plaintiff." Id. at p. 1. The paper entitled Unconstitutional Administrative Regulation and Treatment Program asserts claims regarding the unconstitutionality of an Administrative Regulation and a treatment program.

These papers are inappropriately filed. The initial Motion for Judgment on the Pleadings was superceded by the plaintiff's Amended Motion for Judgment on the Pleadings. The Amended Motion for Judgment on the Pleadings appears to be an attempt to amend the Complaint to add claims. The paper entitled Unconstitutional Administrative Regulation and Treatment Program also appears to be an attempt to amend the Complaint to add claims.

If the plaintiff seeks to amend his Complaint, he must do so as directed below. If the plaintiff seeks judgment on the pleadings, he may file one motion which contains all of his arguments and supporting legal authorities. He may not assert new claims in a motion for judgment on the pleadings.

I caution the plaintiff, however, that under Rule 12(c), a motion for judgment on the pleadings may not be filed until the pleadings are closed. Rule 7(a) provides that the pleadings are closed upon the filing of a complaint and an answer. The defendants have timely filed a motion to dismiss all of the plaintiff's claims against them. Therefore, they have not filed an answer and are not required to file an answer until the motion to dismiss has been resolved.

In his motion to amend the Complaint, the plaintiff seeks the Court's permission to file an amended complaint on or before August 31, 2007. The plaintiff does not attach a proposed amended complaint to the motion. In the alternative, the plaintiff requests that the Court accept the above-filed motions, plus his original Complaint and his recently filed Motion for Clarification of Factual Issues,¹ as his amended complaint.

1 By separate order, I have stricken the plaintiff's Motion for Clarification of Factual Issues because it constituted a sur-reply to the defendants' motion to dismiss the Complaint.

The Federal Rules of Civil Procedure provide that a complaint may be amended as follows:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party.

Fed.R.Civ.P. 15(a).

A responsive pleading has not yet been served in this case.² Therefore, the plaintiff may amend his pleading as a matter of course.

2 The defendants' motion to dismiss is not a responsive pleading.Cooper v. Shumway, 780 F.2d 27, 29 (10^th Cir. 1985).

However, the plaintiff may not amend his Complaint by filing piecemeal amendments and supplements. Rather, he must file the entire proposed amended complaint. The plaintiff may not incorporate by reference his original Complaint into the amended complaint, nor may he incorporate previously filed motions and papers. The amended complaint must stand alone; it must containall of the plaintiff's claims. Accordingly,

IT IS ORDERED that the Motion for Judgment on the Pleadings [Doc. #32, filed 6/4/07]; the Amended Motion for Judgment on the Pleadings [Doc. #35, filed 6/7/07]; the paper entitled Unconstitutional Administrative Regulation and Treatment Program; and the Motion for Leave to Amend Complaint [Doc. #40, filed 7/9/07] are DENIED WITHOUT PREJUDICE, subject to resubmission in conformance with this Order.