United States District Court, M.D. Tennessee, Columbia Division
VAN SMITH, No. 547356, Plaintiff,
CHERRY LINDAMOOD, et al., Defendants.
WAVERELY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE
before the Court is the Plaintiff's motion to
amend/correct his complaint (Doc. No. 10) filed on January
13, 2017 and motion for reconsideration (Doc. No. 14) of the
Court's Order entered on January 3, 2017 (Doc. No. 6).
an inmate of the South Central Correctional Center in
Clifton, Tennessee, filed this pro se action under
42 U.S.C. § 1983 against Cherry Lindamood, f/n/u Franks,
Centennial Medical Center Employees, and Corizon Medical
Services, alleging violations of his federal civil rights.
(Doc. No. 1). Along with his complaint, the Plaintiff
submitted an application to proceed in forma
pauperis. (Doc. No. 2).
reviewing the Plaintiff's submissions, the Court entered
an Order alerting the Plaintiff that his case could not
proceed until the Plaintiff remedied deficiencies in his
application to proceed in forma pauperis. (Docket
No. 3). The Court directed the Plaintiff to comply with the
Court's Order within 28 days and warned the Plaintiff
that failure to comply with the Court's Order could
result in the dismissal of his case. (Id. at p. 2).
The Court also advised the Plaintiff that he could ask for an
extension of time within which to comply with the Court's
instructions as long as he sought the extension within 28
days of the date of entry of the Court's Order.
Court's docket reflects that the Clerk's Office
mailed a copy of the Court's November I, 2016 Order to
the Plaintiff on November 1, 2016, at the mailing address
provided by the Plaintiff to the Court. (Doc. No. 4).
Further, the docket reflects that the Plaintiff received the
Order on November 3, 2016. (Doc. No. 5). However, the
Plaintiff did not respond to the Court's Order and, by
Order entered on January 3, 2017, the Court dismissed this
action for failure to comply with the Order of the Court and
for want of prosecution. (Doc. No. 6). Judgment was entered
on the same day. (Doc. No. 7).
January 13, 2017, the Court received a motion to
amend/correct complaint (Doc. No. 10), an in forma
pauperis declaration (Doc. No. 12), and a Notice of
Appeal (Doc. No. 11) from the Plaintiff.
January 19, 2017, the Sixth Circuit Court of Appeals informed
this Court that the Plaintiff's appeal had been docketed
but would be held in abeyance until after this Court rules on
the motion to amend/correct the complaint. (Doc. No. 13).
January 26, 2017, the Plaintiff filed a motion for
reconsideration (Doc. No. 14), asking the Court to reconsider
its previous decision to dismiss this case for failure to
comply with the Order of the Court and for want of
prosecution and to deny as moot the Plaintiff's
application to proceed in forma pauperis.
Motion to Amend
an abundance of caution and considering the Plaintiff's
pro se status, the Court will consider the
Plaintiff's motion to amend. See LaFountain v.
Harry, 716 F.3d 944 (6th Cir. 2013)(a
district court can allow a plaintiff to amend his complaint
even when the complaint is subject to dismissal under the
Prison Litigation Reform Act's screening requirements for
prisoner and in forma pauperis suits).
15(a) (2) of the Federal Rules of Civil Procedure states that
leave to amend should be freely given “when justice so
requires.” In deciding whether to grant a motion to
amend, courts should consider undue delay in filing, lack of
notice to the opposing party, bad faith by the moving party,
repeated failure to cure deficiencies by previous amendments,
undue prejudice to the opposing party, and futility of
amendment. Brumbalough v. Camelot Care Ctrs., Inc.,
427 F.3d 996, 1001 (6th Cir. 2005). “Amendment of a
complaint is futile when the proposed amendment would not
permit the complaint to survive a motion to dismiss.”
Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th
Cir.2005) (citing Neighborhood Dev. Corp. v. Advisory
Council on Historic Pres., 632 F.2d 21, 23 (6th
proposed amendment complaint (Doc. No. 10, Attach. 1) is
largely identical to the original complaint (Doc. No. 1).
However, the Court never screened the original complaint
because the Plaintiff failed to comply with the Court's
deficiency order entered on November 1, 2016, and the case
was dismissed prior to screening. There appears to be no
undue prejudice to the opposing parties by permitting the
Plaintiff to amend his complaint at this time. Moreover, as
explained below, the amendment is not futile in all respects.
The Court therefore will grant the motion to amend and screen
the amended complaint pursuant to the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. §§
1915(e)(2) and 1915A.