HUGH LAWSON, Senior District Judge.
This case is before the Court on a Recommendation from United States Magistrate Judge Thomas Q. Langstaff (Doc. 17). Judge Langstaff recommends that Plaintiff's Motion for Injunctive Relief (Doc. 11) be denied; that Plaintiff's claims in the July 2014 Motion to Amend the Complaint ("July Motion") (Doc. 13) be denied in part; and that the August 2014 Motion to Amend the Complaint ("August Motion") (Doc. 15) be denied in full. For those portions of the July Motion that Judge Langstaff does not recommend denying, he suggests that they be construed as an additional complaint and assigned a separate case number. Plaintiff Roger Antonio Bettis, Jr. ("Plaintiff") has filed Objections (Doc. 26) to the Recommendation. After making a de novo review of the Recommendation, the Court accepts and adopts it in full.
The magistrate judge has properly recommended that the motion for injunctive relief be denied. Plaintiff asks for a restraining order against Warden Allen and Deputy Warden Calvin Orr ("Orr") on the basis that they are supposedly threatening to kill him. Beyond the conclusory allegation that Warden Allen is threatening to kill Plaintiff, the motion does not allege any facts with regard to the warden. As for Orr, the motion only claims that he laughed after Plaintiff was stabbed and that another inmate told Plaintiff that Orr had said that Plaintiff was a snitch. Plaintiff has thus clearly not carried his burden of persuading the Court that there is a substantial likelihood he will prevail on the merits or will suffer irreparable injury absent the injunction. See
In an approach that seems sensible, Judge Langstaff construes the first three pages of the July Motion as a motion to amend the Complaint to add claims for constitutional violations against Warden Allen, who was earlier dismissed from this case. Because no responsive pleading to the Complaint had been filed when Plaintiff filed the July Motion, it is granted as a matter of course. See
Although the motion to amend is granted, the Recommendation correctly concludes that the new claims against Warden Allen must be dismissed pursuant to a § 1915(e) review. Plaintiff alleges that Warden Allen threatened to kill him and denied all of his prison grievances, but, standing alone, these actions do not rise to the level of a constitutional violation under 28 U.S.C. § 1983. See
Plaintiff filed an additional motion to amend on August 8, 2014. Federal Rule of Civil Procedure 15 only allows a party to amend a pleading once as a matter of course, so the August Motion may not be granted as a matter of course. A district court has discretion to grant leave for a party to amend his pleading, but a court need not grant a motion to amend a complaint if the amendment would be futile. See
Because the new claims that Plaintiff seeks to add with his August Motion fail to state a claim upon which relief may be granted, the motion is denied as futile. First, Plaintiff alleges that a prison official refused to process his prison grievance, but as has been stated, such a refusal does not rise to the level of a constitutional violation. See
In the Recommendation, the magistrate judge interprets pages five through thirteen of the July Motion, as well as the first two exhibits to that motion, as forming an entirely new complaint relating to a purported attack on Plaintiff in June 2014 and providing a new IFP motion. The Court agrees. The Clerk of Court is directed to open a new case file using the Documents 13, pp. 5-14; 13-1; and 13-2, that will then be reviewed pursuant to 28 U.S.C. § 1915A.