United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge
ORDER AND ENTRY: (1) GRANTING PRO SE PLAINTIFF'S
SECOND MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DOC.
20); (2) GRANTING PRO SE PLAINTIFF'S MOTION FOR LEAVE
FROM THE CERTIFICATE OF SERVICE REQUIREMENT (DOC. 19); AND
(3) DIRECTING THE CLERK TO SEPARATELY FILE PRO SE
PLAINTIFF'S FIRST AMENDED COMPLAINT (DOC. 20-1)
Michael J. Newman United States Magistrate Judge
AND RECOMMENDATION THAT: (1) DEFENDANTS'
MOTION TO DISMISS BE DENIED AS MOOT (DOC. 12); AND (2)
PRO SE PLAINTIFF'S FIRST MOTION FOR LEAVE TO
FILE AN AMENDED COMPLAINT (DOC. 14) BE DENIED AS
civil case is before the Court on the motion to dismiss (doc.
12) filed by Defendants Richard K. Jones and Dennis Adams.
Doc. 12. Pro se Plaintiff Darnell Wesly Moon
(“Moon”) filed a memorandum in opposition to
Defendants' motion. Doc. 13. Thereafter, Defendants filed
a reply memorandum. Doc. 16.
addition to opposing Defendants' motion to dismiss, Moon
has also filed two motions for leave to file an amended
complaint (docs. 14, 20), which the Court addresses before
addressing Defendants' motion. In his original complaint,
Moon asserts civil rights claims under 42 U.S.C. § 1983
against Defendants in their personal capacities, as well as a
claim of intentional infliction of emotional distress under
Ohio law. Doc. 3. Moon's § 1983 claims all concern
the alleged conditions of his confinement at the Butler
County Jail (the “Jail”) in Hamilton, Ohio.
Id. Specifically, Moon contends that Defendants
violated his constitutional rights by depriving him of: (1)
religious accommodations; (2) cleaning items for personal
hygiene; (3) edible food; and (4) recreation. Id.
Defendants moved to dismiss Moon's original complaint
under Fed.R.Civ.P. 12(b)(6), arguing that Moon's factual
allegations set forth only temporary inconveniences and do
not set forth any actual injury -- or at least a
constitutional injury. Doc. 12 at PageID 45.
first motion for leave (doc. 14), Moon requested leave so
that he could set forth factual allegations with more
specificity. Id. at PageID 57. Moon did not attached
a proposed amended complaint to his first motion for leave
and failed to identify what additional facts he sought to
allege. See id. Nevertheless, on June 1, 2017, Moon
filed a second motion for leave to amend his complaint (doc.
20), to which he attached a proposed amended complaint. Doc.
proposed amended complaint sets forth similar allegations
regarding the alleged denial of religious accommodations,
toiletries, and edible food. See doc. 20-1 at PageID
93-94. Omitted from Moon's proposed amended complaint are
allegations regarding the lack of recreation while
incarcerated. See id. Added, however, are
allegations about having been stripped search upon intake;
being laughed at while naked during the search by other
inmates and an unidentified corrections officer; living and
showering in dirty conditions; being denied a shower for 3 or
4 days and then being denied warm water for showers
thereafter; having to shower while exposed to other inmates;
sleeping on a thin mattress; and sleeping in a freezing cold
cell. Id. at PageID 93-94.
a district court “should freely give leave [to amend
the pleadings] when justice so requires.” Ross v.
Am. Red Cross, 567 F. App'x 296, 306 (6th Cir. 2014)
(citing Fed.R.Civ.P. 15(a)(2)). The decision to grant or deny
leave to amend lies within the discretion of the district
court. Foman v. Davis, 371 U.S. 178, 182 (1962).
See Fed. R. Civ. P. 12(b)(6). In the interests of
justice, the undersigned GRANTS Moon's second motion for
leave (doc. 20) and RECOMMENDS that Moon's first motion
for leave (doc. 14) be DENIED as MOOT. The Clerk shall
separately file Moon's proposed amended complaint (doc.
Court next addresses Defendants' motion to dismiss. Doc.
12. “Because amended complaints supersede the original
pleading, the filing of the amended complaint . . .
technically render[s] [a] pending motion to dismiss
moot.” Yates v. Applied Performance Techs.,
Inc., 205 F.R.D. 497, 499 (S.D. Ohio 2002). Because
Defendants' motion to dismiss addresses the allegations
in the original complaint, the it is MOOT and the undersigned
RECOMMENDS that Defendants' motion be DENIED as such,
WITHOUT PREJUDICE to refile addressing the allegations in the
Moon seeks leave from serving Defendants by regular mail and,
instead, seeks permission to serve Defendants through the
Court's electronic filing system (“CM/ECF”).
Doc. 19. In light of the financial hardship upon Moon, and in
the absence of prejudice to Defendants -- they will receive
all filings via the Court's CM/ECF system -- the Court
GRANTS Moon's motion. Doc. 19.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within FOURTEEN days after
being served with this Report and Recommendation. This period
is not extended by virtue of Fed.R.Civ.P. 6(d) if served on
you by electronic means, such as via the Court's CM/ECF
filing system. If, however, this Report and Recommendation
was served upon you by mail, this deadline is extended to
SEVENTEEN DAYS by application of
Fed.R.Civ.P. 6(d). Parties may seek an extension of the
deadline to file objections by filing a motion for extension,
which the Court may grant upon a showing of good cause.
objections filed shall specify the portions of the Report and
Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report
and Recommendation is based, in whole or in part, upon
matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs.
may respond to another party's objections within FOURTEEN
days after being served with a copy thereof. As noted above,
this period is not extended by virtue of Fed.R.Civ.P. 6(d) if
served on you by electronic means, such as via the
Court's CM/ECF filing system. If, however, this Report
and Recommendation was served upon ...