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Adams v. Ade

United States District Court, E.D. Oklahoma

July 31, 2019

XAVIER ADAMS, Plaintiff,
v.
TIFFANY ADE, MARK GENTRY, and DIANA JONES, Defendants.

          OPINION AND ORDER

          JAMES H. PAYNE, UNITED STATES DISTRICT JUDGE.

         Before the Court are Plaintiff's proposed amended complaint, his motion for appointment of counsel (Dkt. 26), and his motion for preliminary injunction (Dkt. 27).

         Proposed Amended Complaint

         On July 29, 2019, Plaintiff submitted an amended civil rights complaint pursuant to 42 U.S.C. § 1983, naming Terry Underwood, Grievance Coordinator, as an additional defendant and complaining about Underwood's responses to Plaintiff's grievances. Plaintiff did not submit a motion for leave to file an amended complaint, as required by Local Civil Rule 9.2(c). In addition, Plaintiff improperly submitted documents with writing on both sides of the paper, in violation of Local Civil Rule 5.2(a).

         The Federal Rules of Civil Procedure set forth the requirements for filing an amended pleading:

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

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

         Here, Plaintiff's proposed amended complaint fails to comply with the Federal Rules of Civil Procedure and this Court's Local Civil Rules. The Court notes that to the extent the proposed amended complaint is an attempt to raise a claim that Underwood denied his grievances, “a denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by the plaintiff, does not establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citations omitted). See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“[P]ersonal participation in the specific constitutional violation complained of is essential.”).

         Because Plaintiff has failed to comply with the Federal and Local Civil Rules, the Court directs the Court Clerk to return the proposed amended complaint unfiled.

         Motion for Appointment of Counsel

         Plaintiff has filed a motion for appointment of counsel (Dkt. 26). He bears the burden of convincing the Court that his claim has sufficient merit to warrant such appointment. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (citing United States v. Masters, 484 F.2d 1251, 1253 (10th Cir. 1973)). The Court has carefully reviewed the merits of Plaintiff's claims, the nature of factual issues raised in his allegations, and his ability to investigate crucial facts. McCarthy, 753 F.2d at 838 (citing Maclin v. Freake, 650 F.2d 885, 887-88 (7th Cir. 1981)). After considering Plaintiff's ability to present his claims and the complexity of the legal issues raised by the claims, ...


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