The opinion of the court was delivered by: Judge George C. Smith
Magistrate Judge Norah McCann King
Plaintiff, a state inmate, brings this action under 42 U.S.C. §1983 ("Section 1983 ") alleging that he has been denied his rights under the Constitution of the United States during the course of his incarceration at the Southern Ohio Correctional Facility and the Ohio State Penitentiary. This matter is before the Court on Plaintiff's Motion for Leave to File a Second Amended Complaint ["Motion to Further Amend"]. Doc. No. 81. For the reasons that follow, plaintiff's motion is DENIED.
On July 23, 2003, plaintiff -- acting without the assistance of counsel -- filed the instant action asserting eight counts under Section 1983. Doc. No. 2. On July 23, 2004, plaintiff filed a motion to amend the complaint in which he withdrew his fourth claim for relief and withdrew his claims for affirmative relief against 13 named defendants. Doc. No. 21. On October 18, 2004, this Court granted plaintiff's motion to amend, dismissing the fourth claim and 13 of the defendants. In conducting the review required by 28 U.S.C. §1915A, the Court also dismissed plaintiff's sixth claim for relief for failure to exhaust available administrative remedies. Doc. No. 23. On June 14, 2005, this Court dismissed defendants McGraw, Carter, and Wade from the action because they had not been properly served. Doc. No. 52. Consequently, pending at this time are six claims brought pursuant to Section 1983 against thirteen defendants, i.e., plaintiff's first, second, third, fifth, seventh and eighth claims against defendants Wilkinson, Green, Fout, Ishee, Fletcher, Ritz, Wolfe, Nail, Klienknecka, Cuevas, Henyard, Evans, and Weaks.
Defendants filed a motion for summary judgment addressing all of plaintiff's remaining claims on April 13, 2006. Doc. Nos. 55, 56. That motion remains pending and unopposed.
In May 2006, counsel entered an appearance on behalf of plaintiff. Doc. Nos. 71, 74. Counsel filed the Motion to Further Amend on August 2, 2006. Doc. No. 81.
Plaintiff moves to further amend the complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, which provides that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Plaintiff offers four justifications for the request. First, plaintiff offers to dismiss the 13 defendants previously "amended out" of this case. Motion to Further Amend, at 2. However, this dismissal of these 13 defendants was effected on October 18, 2004:
In the amended complaint, plaintiff withdraws his claim for affirmative relief as against 13 of the 30 individuals named as defendants in the original complaint. [Footnoting the names of each of the 13 dismissed defendants]. The Clerk shall INDICATE ON THE DOCKET that these individuals are no longer parties to this action.
Order, at 2, Doc. No. 23. It is therefore unnecessary to further amend the complaint to reflect this fact.
Second, plaintiff offers in the proposed second amended complaint to withdraw his claims of conspiracy and any claims related to the adequacy of the prison grievance process. Motion to Further Amend, at 3. However, such claims have not been expressly asserted to this point in the litigation.
Third, the proposed second amended complaint seeks to join Terry Collins, the current Director of the Ohio Department of Rehabilitation and Correction who replaced defendant Wilkinson, as a necessary party to the injunctive relief sought in this action. Plaintiff's Reply at
5. Because the new director has been automatically substituted for defendant Wilkinson in his official capacity, see F.R. Civ. P. 25(d), further amendment of the complaint is not ...