United States District Court, D. Nebraska
JOHN M. CARTER, Plaintiff,
WILLIAM MULDOON and DAVE STOLZ, in their individual capacities, Defendants.
Michael D. Nelson United States Magistrate Judge
matter is before the Court on the Motion to Amend Pleadings
(Filing No. 65) filed by Plaintiff, John M. Carter,
pro se. The Court will deny the motion.
Plaintiff did not file a brief with his motion, which is
grounds alone for the Court to deny his motion. This
district's local rules provide, “If the court
concludes that a motion raises a substantial issue of law . .
. it may treat the failure to file a brief as an abandonment
of the motion.” NECivR 7.1(a)(1)(B).
Plaintiff's motion raises a substantial issue of law
because he is seeking to amend his pleadings outside the
deadline set by the Court. “[P]ro se litigants are not
excused from failing to comply with substantive and
procedural law.” Burgs v. Sissel, 745 F.2d
526, 528 (8th Cir. 1984)(citing Faretta v.
California, 422 U.S. 806, 834-35 n. 46 (1975)).
“[P]arties who proceed pro se are bound by and must
comply with all local and federal procedural rules.”
NEGenR 1.3(g). Therefore, the Court may treat
Plaintiff's failure to file a brief in accordance with
this district's local rules as an abandonment of his
also did not comply with NECivR 15.1 when filing his
motion. “A party who moves for leave to amend a
pleading (including a request to add parties) must file as an
attachment to the motion an unsigned copy of the proposed
amended pleading that clearly identifies the proposed
amendments.” NECivR 15.1(a). Plaintiff did not
attach a proposed pleading to his motion nor did he identify
his proposed amendments; instead, five days after he filed
his motion, Plaintiff filed a “Complaint for Racial
Discrimination; Civil Conspiracy to Violate Civil Rights;
Violation of the Thirteenth Amendment” against William
Muldoon and David Stolz. (Filing No. 66).
Plaintiff's failure to comply with NECivR 15.1
is further reason to deny his motion.
the Court also finds that Plaintiff's motion should be
denied on its merits. Although Fed. R. Civ. P. 15(a)
provides that a Court should “freely give leave”
to amend a pleading “when justice so requires, ”
a party does not have an absolute right to amend, and
“denial of leave to amend may be justified by undue
delay, bad faith on the part of the moving party, futility of
the amendment or unfair prejudice to the opposing
party.” Amrine v. Brooks, 522 F.3d 823, 833
(8th Cir. 2008)(quotation and citation omitted).
Additionally, when a party seeks leave to amend under Rule
15(a) outside of the deadline established by a scheduling
order, the party must first demonstrate good cause under Rule
16(b). See Popoalii v. Corr. Med. Servs., 512 F.3d
488, 497 (8th Cir. 2008); Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 716 (8th Cir. 2008).
case, the Court entered a progression order setting July 30,
2018, as the deadline for the parties to file “[a]ny
motion to amend pleadings” and reminded the parties
that they “must comply with the provisions of NECivR
15.1 when moving to amend the pleadings.”
(Filing No. 58). Plaintiff filed the present motion
to amend on September 12, 2018, after the deadline expired,
and did not request an extension of the deadline. Therefore,
Plaintiff must demonstrate good cause to amend his pleadings.
See Sherman, 532 F.3d at 716. “The
primary measure of good cause is the movant's diligence
in attempting to meet the order's requirements.”
Sherman, 532 F.3d at 716 (citing Rahn v.
Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). “[I]f
the reason for seeking the amendment is apparent before the
deadline and no offsetting factors appear, the Rule 16
deadline must govern.” Financial Holding Corp. v.
Garnac Grain Co., 127 F.R.D. 165, 166 (W.D. Mo. 1989).
The decision whether to grant a motion for leave to amend is
within the sound discretion of the district court.
Popoalii, 512 F.3d at 497.
noted above, Plaintiff did not file a brief, but states in
his motion that after he received Defendants' discovery
responses on August 30, 2018, he “determined that there
are additional defendants that need to be added to the
lawsuit and causes of action to be added” because the
information “revealed other issues . . . that need to
be brought before a jury.” (Filing No. 65).
Plaintiff does not explain what the discovery revealed or
identify the new issues, and review of Plaintiff's
“Complaint” at Filing No. 66 (which the
Court will construe as Plaintiff's proposed amended
pleading) does not make these new issues apparent. Plaintiff
also does not name new defendants in his proposed pleading,
which only lists William Muldoon and David Stolz as
defendants in the caption. Plaintiff also raises the same
“Deprivation of Equal Protection and Due Process”
and “Racial Discrimination” claims as he raised
in his original Complaint.Plaintiff generally adds more factual
allegations to support these claims in his proposed pleading,
see, e.g., Filing No. 66 at p. 6 ¶¶ 19-20,
22-24, but does not otherwise change the substance of his
previous surviving claims.
only substantive change in Plaintiff's proposed amended
pleading is the addition of a claim under the Thirteenth
Amendment. In support of this claim, Plaintiff asserts that
“The only time Plaintiff[']s credibility to perform
his duties as a law enforcement officer has ever been raised
is when the Defendants have contacted persons within the
jurisdictions where Plaintiff was performing his duties as a
law enforcement officer and made it the subject of discussion
and provided targeted information for the receiving parties
to consider.” (Filing No. 66 at p. 15 ¶
51). Plaintiff claims that “The willful, wanton and
malicious conduct of the Defendants to use every avenue at
their disposal to influence others in positions of authority
or apparent authority to discriminate against the Plaintiff
and deny the Plaintiff the opportunity to advance in
employment opportunities is a badge of slavery.”
(Id. at ¶ 52). Plaintiff's allegations in
support of this claim would have been apparent prior to the
expiration of the deadline to amend pleadings. Moreover,
Plaintiff's proposed amended pleading contains no
plausible allegations that could fairly be characterized as
involuntary servitude within the meaning of the Thirteenth
Amendment. Therefore, permitting Plaintiff to amend his
pleading to add this claim would be futile as it would not
survive a motion to dismiss. See Zutz v. Nelson, 601
F.3d 842, 850 (8th Cir. 2010)(“Denial of a motion for
leave to amend on the basis of futility means the district
court has reached the legal conclusion that the amended
complaint could not withstand a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil
Procedure.”)(internal quotations omitted).
Plaintiff did not comply with this district's local rules
when filing his motion for leave to amend, did not show good
cause for leave to amend after the deadline imposed by the
Court, and his proposed new claim would be futile.
Accordingly, IT IS ORDERED that
Plaintiff's Motion to Amend Pleadings (Filing No. 65) is
 Additionally, neither defendant filed
a brief in opposition to the motion. Although a
defendant's “[f]ailure to file an opposing brief is
not considered a confession of a motion, ” see
NECivR 7.1(b)(1)(C), a response to Plaintiff's motion by
Defendants would have been helpful to the Court.
 As in his original Complaint,
Plaintiff asserts his equal protection and due process claims
under 42 U.S.C. § 1982, not § 1983, and his claim
for racial discrimination under 42 U.S.C. § 1981 without
reference to § 1983. Nevertheless, Chief Judge Smith
Camp previously concluded that “Carter may proceed
against Muldoon and Stolz, in their individual capacities, on
the following claims: (1) race discrimination under 42 U.S.C.
§ 1981, (2) equal protection under ...