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Miller v. Vail

United States District Court, W.D. Arkansas, Texarkana Division

April 5, 2016

MELTON LEE MILLER, Plaintiff,
v.
ASHLEY VAIL, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

Plaintiff Melton Miller filed this case pro se pursuant to 42 U.S.C. § 1983 on August 12, 2015. ECF No. 1. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2014), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation.

The case is before me on Plaintiff's Motion to Supplement Complaint (ECF No. 7)[1] and a Motion to Dismiss (ECF No. 12) filed by Defendant Ashley Vail. Plaintiff has not responded to the Motion to Dismiss. The Motions are ready for decision.

1. BACKGROUND

Plaintiff is currently an inmate of the Arkansas Department of Correction - Ouachita River Unit. In Plaintiff's Complaint he named Ashley Vail as the Defendant. Ms. Vail is an Administrative Law Judge at the Arkansas Board of Parole. According to the allegations of the Complaint, Plaintiff asserts that Vail violated his constitutional rights when she presided over his parole revocation hearing. Plaintiff's only basis for his claim is that his first name was misspelled ("Milton" instead of "Melton") in documents used during the hearing.[2]

Plaintiff's motion to proceed in forma pauperis in this matter was granted on August 12, 2015. ECF No. 3. On August 20, 2015 Plaintiff supplemented his Complaint. ECF No. 5. Then on September 3, 2015 Plaintiff filed a Motion to Supplement his Complaint asserting what appears to be the same allegations contained in his initial Complaint and initial Supplement. ECF No. 7. Defendant filed a Motion to Dismiss on December 3, 2015.

2. APPLICABLE LAW

Rule 15 of the Federal Rules of Civil Procedure governs amended pleadings. Rule 15(a) and (d) provide in pertinent part:

(1) Amending as a Matter of Course . A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) 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.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a).

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

Fed. R. Civ. P. 15 (d)

Although leave to amend is to be freely granted under Rule 15(a), the Court has discretion whether or not to grant leave to amend. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32 (1971). Factors to consider in determining whether leave to amend should be granted include but are not limited to: (1) whether the motion was filed in bad faith or with dilatory motive; (2) whether the motion was filed with undue delay; (3) whether leave to amend would be unduly prejudicial to the opposing parties; and (4) whether the proposed amendment would be futile. See Bell v. Allstate Life Ins. Co., 160 F.3d ...


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