Free Response - District Court of Connecticut - Connecticut

Case 3:02-cv-02317-JCH

Document 94

Filed 10/18/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT PRISONER CIVIL NO. 3:02CV2317 (JCH)

JAMES McKINNON v. THOMAS HUNT, ET AL.

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OCTOBER 15, 2004

DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO SEEK LEAVE TO FILE AMENDED COMPLAINT

By pleading dated October 5, 2004, received October 12, 2004, plaintiff pro se inmate seeks permission to amend his complaint to add a new defendant, Morales, pursuant to Rule 15, F.R.Civ.P. It is unclear from the pleading whether it has been filed in the District Court or in the United States Court of Appeals for the Second Circuit. Regardless of its destination, the motion should be denied. If the motion has been filed with the Appellate Court in plaintiff's appeal in Docket No. 04-4573, it should be rejected as invalid. The amendment rule, by its plain language, is a pretrial rule that applies to matters pending in the District Court, not to appeals. "An Appellate Court cannot act and should not act as a pre-trial court." Syracuse v. Newhouse, 295 F.2d 269, 271 (1961). The District Court in this case denied plaintiff's request to amend his complaint to add Morales by decision dated May 17, 2004. See Ruling on Motions for Summary Judgment, p. 8, Record. It denied plaintiff's Motion to Alter or Amend Judgment on the same issue by decision dated July 30, 2004. See Ruling on Motion to Alter or Amend Judgment, p. 4, Record. Plaintiff appealed the case to the United States Court of Appeals where it was filed on August

Case 3:02-cv-02317-JCH

Document 94

Filed 10/18/2004

Page 2 of 3

24, 2004. The validity of the District Court's decision on this point can be decided as an appellate issue, if plaintiff raises it. If the motion has been filed in the District Court, it is too late. As argued above, the District Court rendered summary judgment for the defendants in this case on May 17, 2004. See Ruling on Motions for Summary Judgment, Record. Its decision included a denial of plaintiff's earlier request to add Morales as a defendant. Id. at p. 8. It denied plaintiff's Motion to Alter or Amend Judgment on the same issue by decision dated July 30, 2004. See Ruling on Motion to Alter or Amend Judgment, p. 4, Record. Plaintiff appealed the case to the United States Court of Appeals where it was filed on August 24, 2004. As a general rule, an appeal suspends the District Court's power to adjudicate substantial rights directly involved in the appeal except where certain, timely, post-trial motions are made by a party. Rule 60(a), F.R.Civ.P.; see Leonhard v. United States, 633 F.2d 599, 609-610 (2nd Cir. 1980) cert. denied 451 U.S. 908 (1981). Plaintiff's Rule 15 motion is not such a motion. The District Court ordinarily cannot vacate its judgment pending appeal. Lewis v. Tobacco Workers' International Union, 577 F.2d 1135, 1139 (4th Cir. 1978) cert. denied 439 U.S. 1089 citing Ideal Toy Corp. v. Savco Doll Corp., 302 F.2d 623 (2nd Cir. 1962). Accordingly, we urge the Court to deny plaintiff's motion.

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Case 3:02-cv-02317-JCH

Document 94

Filed 10/18/2004

Page 3 of 3

DEFENDANTS Thomas Hunt, et al. RICHARD BLUMENTHAL ATTORNEY GENERAL BY: ________/s/_____________________________ Robert F. Vacchelli Assistant Attorney General 110 Sherman Street Hartford, CT 06105 Federal Bar #ct05222 E-mail: [email protected] Tel.: (860) 808-5450 Fax: (860) 808-5591

CERTIFICATION I hereby certify that a copy of the foregoing was mailed to the following on this 15th day of October, 2004: James McKinnon, Inmate No. 100770 Corrigan-Radgowski Correctional Center 986 Norwich-New London Turnpike Uncasville, CT 06382

__________/s/________________________ Robert F. Vacchelli Assistant Attorney General

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