United States District Court, N.D. New York
APPEARANCES: DELVILLE BENNETT Plaintiff pro se CHRISTIAN F.
HUMMEL United States Magistrate Judge
DECISION AND ORDER
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE.
pro se Delville Bennett ("Plaintiff")
commenced this civil rights action asserting claims arising
out of his confinement in the custody of the New York State
Department of Corrections and Community Supervision
("DOCCS") at Franklin Correctional Facility
("Franklin C.F."). In a Decision and Order filed on
November 16, 2017 (the "November Order"), the Court
reviewed the sufficiency of the Complaint (Dkt. No. 1) in
accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915A. See Dkt. No. 7. Based on that review, the
Court dismissed several causes of action and directed
defendants Officer Robert J. McGrath ("McGrath")
and T. A. Jiguer ("Jiguer") to respond to
Plaintiff's racial discrimination claims and excessive
force claims related to incidents that allegedly occurred on
November 10, 2014, February 28, 2015, and August 19, 2016.
See Dkt. No. 7 at 39, generally. The Court
If Plaintiff wishes to pursue any claim dismissed without
prejudice, he is advised to that, if accepted for filing, any
amended complaint will entirely replace the original
complaint and incorporation of prior claims is not permitted.
No. 7 at 39, n.15.
December 5, 2017, Plaintiff filed a letter motion seeking an
"unlimited" extension of time to file an amended
complaint. Dkt. No. 9. The Court granted Plaintiff's
application, in part, and directed Plaintiff to file his
amended pleading on or before February 6, 2018. Dkt. No. 10.
The Court cautioned:
Plaintiff is reminded that his amended complaint must be
complete pleading which, if accepted by the Court for filing,
will supersede and replace the original complaint in its
entirety. Any amended complaint should comply with the
requirements of Rule 15 of the Federal Rules of Civil
Procedure and this District's Local Rules of Practice.
The Court takes no position at this time on the merits of any
such amend complaint.
December 13, 2017, Plaintiff filed a pleading entitled
"Prisoner Civil Rights Complaint." Dkt. No. 11. On
January 3, 2018, Plaintiff filed a letter with the Court,
dated December 29, 2017, and stated that he is "doing
his best to perfect his Amended Complaint to meet his
[d]eadline date on or before February 6th,
2018." Dkt. No. 14 at 1.
filing of amended pleadings is governed by Rule 15 of the
Federal Rules of Civil Procedure. A party may amend, as of
right, 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. See Fed.R.Civ.P. 15.
An amended complaint is intended to replace and supercede in
its entirety the previous complaint. Once accepted for
filing, the amended complaint becomes the operative pleading,
and the original complaint is no longer considered. See
Dluhos v. Floating & Abandoned Vessel, Known as New
York, 162 F.3d 63, 68 (2d Cir. 1998) ("[I]t is well
established that an amended complaint ordinarily supersedes
the original, and renders it of no legal effect.")
(citing Shields v. Citytrust Bancorp, Inc., 25 F.3d
1124, 1128 (2d Cir. 1994)). This requirement is buttressed by
the Local Rules of Practice of this District ("Local
Rules"), which provide, in pertinent part, that amended
pleadings must be complete pleadings which will supersede the
original pleading in all respects. See N.D.N.Y.L.R.
7.1(a)(4). The Local Rules further state that a "party
shall not incorporate any portion of its prior pleading into
the proposed amended pleading by reference."
Id. One of the purposes of the requirement that an
amended complaint be itself a complete pleading is to ensure
that all of the allegations asserted against the defendants
are contained in a single document, thereby reducing the
likelihood that a party will overlook one or more allegations
against him. See Walker v. Fischer, No. 10-CV-1431
(MAD/DEP), 2012 WL 1029614, at *10 (N.D.N.Y. Mar. 26, 2012)
(citation omitted). This requirement also eliminates the
confusing nature of "piecemeal" amended complaints.
See Chapdelaine v. Keller, 9:95-CV-1126 (HGM/GS),
1999 WL 34998130, at *1 (N.D.N.Y. Sep. 28, 1999). In other
words, an amended complaint must include all of the
allegations against each of the defendants against whom the
case is going forward so that the amended complaint may stand
alone as the sole complaint in the action. "While we
have insisted that the pleadings prepared by [pro se
litigants] be liberally construed . . . we have never
suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who
proceed without counsel." McNeil v. United
States, 508 U.S. 106, 113 (1993).
submission presently before the Court is not in compliance
with N.D.N.Y. Local Rule 7.1(a)(4). The submission does not
include Plaintiff's original claims against McGrath and
Jiguer and does not indicate whether Plaintiff intends to
abandon those claims or supersede those allegations with his
submission. Indeed, the caption of the pleading contains only
one defendant, "Officer Coplan, " who was not
previously named as a defendant in the case. See
generally Dkt. No. 11. In light of Plaintiff's
January 2018 correspondence, it does not appear that
Plaintiff intends this submission to serve as a replacement
of his original Complaint. As explained above, Plaintiff may not
submit an amended complaint and at the same time proceed with
the original complaint. Compliance with this Court's
local rules is "not merely technical in nature."
See Cusamano v. Sobek, 604 F.Supp.2d 416, 508
juncture, the Court will not accept the pleading, identified
at Dkt. No. 11, as the Amended Complaint or the operative
pleading. Accordingly, Plaintiff is directed to, within
SIXTY DAYS of the date of this Order, submit
a proposed amended pleading that complies with this
Court's Local Rules or inform the Court
that he intends to proceed with Dkt. No. 11 as the operative