Portier v. Shoemaker

1:05-cv-00634 | D. Colo. | Aug 24, 2005

Case 1:05-cv-00634-WDM-PAC Document 23 Filed 08/24/05 USDC Colorado Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05 cv 00634 WDM PAC KENNETH W. PORTIER,

Plaintiff, v. CAPTAIN BARNETT D. BAUER and SERGEANT EVE KELEMENA,

Defendants. ORDER DENYING MOTION TO AMEND Patricia A. Coan, United States Magistrate Judge O n A p ri l 5 , 2 005, plaintiff filed his pro se prisoner complaint for violation of civil rights pursuant to 42 U.S.C. § 1983 naming three defendants: Sergeant Shoemaker; Captain Bauer; and Sergeant Keleman. An Order to Show Cause was signed by Magistrate Judge Boland on May 3, 2005, which directed plaintiff to comply with the exhaustion of ad m i n istrative remedies pleading requirement set forth in Steele v. Fed. Bureau of Prisons , 355 F.3d 1204, 1210 (10 th Cir. 2003) or face dismissal of his complaint. Plaintiff responded to the Order to Show Cause on May 26, and the Order to Show Cause was discharged on June 2, 2005. Plaintiff then filed a n o t h e r co m p l a int, treated as an amended complaint, on June 10, 2005. That complaint named Captain Bauer and Sergeant Keleman as defendants.

On July 5, 2005, plaintiff filed a Motion to Reinstate Defendant in Caption (Sgt. Shoemaker), which was treated as a Motion to Amend and referred to me on July 11, 2005. In the m o t i on it appears that plaintiff may have filed the amended complaint out of fear that the first complaint he filed would be dismissed, even though the Order to Show Cause was discharged and the case was

Case 1:05-cv-00634-WDM-PAC Document 23 Filed 08/24/05 USDC Colorado Page 2 of 2 ordered drawn to a district judge and magistrate judge on June 2, 2005. Plaintiff asks the court to “reinstate” Sergeant Shoemaker as a defendant. He seeks this reinstatement of not ju st the claim against Shoemaker in the first complaint, but as a result of his desire to let the “second complaint sit idle in case the first complaint is dismissed for failing to exhaust administrative remedies.” Plaintiff’s Motion to Amend at 3. Plaintiff’s request to have two alternative complaints one as a “backup” in case the first one fails is not permitted by the Federal Rules of Civil Procedure which govern civil actions filed in this court. T h e p l a i n t i f f must prosecute his own case, and decide which claims against which defendants he wishes to p u rsue. Plaintiff shall notify this court in writing, not later than September 9, 2005, of the choice he has made regarding which complaint he wishes to assert in this action. If he wishes to amend his complaint once again, he may seek leave from the court to do so pursuant to Fed. R. Civ. P. 15(a). If he wishes to reinstate his original complaint, the court will order Sergeant Shoemaker to be served.

It is hereby ORDERED that petitioner’s Motion to Amend [filed July 5, 2005] is denied. Plaintiff shall specify to this c our t in w riting, not later than September 9, 2005 , which complaint he wishes to pursue.

Dated this 24 th day of August, 2005.

BY THE COURT:

s/ Patricia A. Coan

PATRICIA A. COAN

United States Magistrate Judge

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