The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TERRANCE WILLIAMS, )
)
Plaintiff, )
) No. 2:21-cv-02113-JTF-atc
)
v. )
)
DERRIUS DAVIS, ET AL., )
)
Defendants. )
)
ORDER VACATING THE ORDER DATED MARCH 4, 2022 (ECF NO. 13);
GRANTING WILLIAMS’S APPLICATION FOR EXTENSION OF TIME
TO AMEND (ECF NO. 14);
AND ORDERING PLAINTIFF TO SHOW CAUSE WHY DEFENDANT DAVIS
SHOULD NOT BE DISMISSED FROM THE CASE
On February 25, 2021, Plaintiff Terrance Williams, who is incarcerated at the Shelby
County Criminal Justice Center (the “Jail”) in Memphis, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 and a motion for leave to proceed in forma pauperis. (ECF Nos. 1
& 2.) On April 14, 2021, the Court granted leave for Williams to proceed in forma pauperis. (ECF
No. 5.) On April 21, 2021, Williams filed an amended complaint. (ECF No. 6.) On February 9,
2022, the Court: (1) consolidated Williams’s initial complaint (ECF No. 1) and amended complaint
(ECF No. 6) for screening purposes (the “Consolidated Complaint”) under the Prison Litigation
Reform Act, 28 U.S.C. §§ 1915, et seq.; (2) partially dismissed the Consolidated Complaint for
failure to state a claim to relief1; (3) proceeded the Consolidated Complaint’s excessive force claim
1 With respect to the Screening Order’s partial dismissal of the Consolidated Complaint,
the Court dismissed the: (1) claims against Shelby County, (2) claims against Defendants Davis,
Stewart, Munphrey, and Elliott in their official capacities, (3) Eighth Amendment claims against
against Defendants Davis and Stewart in their individual capacities; (4) denied all pending motions
(ECF Nos. 7 & 8); and (5) granted leave to amend within twenty-one days. (ECF No. 11 (the
“Screening Order”).)
Williams’s deadline to amend the Dismissed Claims expired on Wednesday, March 2,
2022. Williams did not file amended claims and did not timely seek an extension of time to do so.
On March 4, 2022, the Court dismissed the Dismissed Claims with prejudice. (ECF No. 13.)
On March 14, 2022, Williams filed a letter that alleges he amended the Dismissed Claims
on February 25, 2022. Williams says that he gave the amendment to one of the Jail’s officers to
mail on February 28, 2022. (ECF No. 14 (the “Letter”) at PageID 120.) Williams says he “had
the notion that the notice ordering me to amend meant within 21 ‘business days.’” (Id.) However,
Williams did not attach to the Letter his alleged amendment of the Dismissed Claims. Instead, he
attached another letter to the Court dated February 12, 2022 (ECF No. 14-1 (the “Exhibit”))
claiming that Williams is “going to amend the complaint to the best of my ability but due to lack
of resources … the amendment might lack the sufficiency needed.” (Id. at PageID 121.) The
alleged amendment of the Dismissed Claims was never filed with the Court in February 2022 or
March of 2022.
On March 15, 2022, summons returned executed as to Defendant Stewart. (ECF No. 15
(the “Stewart Service”).) On March 15, 2022, summons returned unexecuted as to Defendant
Davis. (ECF No. 16 at Page 127 (U.S. Marshal Service Process Receipt indicates: “Returned
unexecuted. Officer is deceased”).
Defendants Munphrey and Elliott in their individual capacities, (4) verbal harassment claims
against all Defendants, and (5) claims for inadequate prison grievance procedure (collectively, the
“Dismissed Claims”)). (ECF No. 11.)
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On April 5, 2022, counsel for Stewart entered an appearance in the case and filed: (1)
Stewart’s answer to the complaint; and (2) a Suggestion of Death about Defendant Davis. (ECF
Nos. 17 – 19.)
Before the Court are: (1) the Letter (ECF No. 14), which the Court liberally construes as
an application for extension of time to amend; and (2) the Suggestion of Death. (ECF No. 19.)
I. WILLIAMS’S REQUEST FOR EXTENSION OF TIME TO AMEND
The Court liberally construes the Letter as an application seeking an extension of time for
Williams to amend the Dismissed Claims.
Rule 15(a) of the Federal Rules of Civil Procedure allows amended pleadings before trial
on the following conditions:
(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).
A. Williams May Not Amend As Of Right Under Rule 15(a)(1)
Williams did not file a proposed amended pleading by Tuesday, April 5, 2022, which was
twenty-one days after the Stewart Service. Williams never filed the alleged amendment to which
the Letter and the Exhibit refer. (See ECF No. 14 at PageID 120; ECF No. 14-1 at PageID 121.)
Williams cannot amend as a matter of course under Fed. R. Civ. P. 15(a)(1)(A).
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The complaint is a pleading to which a responsive pleading is required. See Fed. R. Civ.
P. 12. More than twenty-one days have passed after Stewart answered the complaint on April 5,
2022, see ECF No. 18, and Williams has not amended the Dismissed Claims. Williams cannot
amend as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)(B).
Because Williams cannot amend his claims as a matter of course under Rule 15(a)(1), he
may amend only with leave of Court pursuant to Rule 15(a)(2).
B. The Court Grants Leave To Amend Under Rule 15(a)(2)
Leave should be granted under Rule 15(a)(2) unless there is “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “A proposed
amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.”
Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (citation
omitted); see also Miller v. Calhoun Cnty., 408 F.3d 803, 807 (6th Cir. 2005) (citation omitted).
The Letter does not demonstrate good cause for an extension of time to amend the
Dismissed Claims. In the Exhibit, which Williams dated February 12, 2022 but did not file until
March 14, 2022, Williams wrote: “I am going to amend the complaint to the best of my ability.”
(ECF No. 14-1 at PageID 121.) In the Letter, Williams contends that he “complete[d]” the alleged
amendment on February 25, 2022. (ECF No. 14 at PageID 120.) Williams has never filed an
alleged complaint or a copy of any such pleading. The reasonable inference from the Letter is that,
if Williams had actually prepared an amended complaint, he would have attached it to the Letter.
Instead, Williams attached only a letter that expresses his intent to amend. (ECF No. 14-1.)
Williams has not filed anything in the case after he submitted the Letter.
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In the Letter, Williams argues that calculation of the Screening Order’s twenty-one (21)
day amendment deadline should have excluded weekends. (ECF No. 14 at PageID 120 (“As in all
business criterion, only business days are accounted for”).) Williams’s argument seems to be an
attempt to deflect attention from his untimeliness and his failure to understand the applicable
procedural rules. Federal Rule of Civil Procedure 6 states, in pertinent part, that when computing
time under the Rules, “every day, including intermediate Saturdays, Sundays, and legal holidays,”
is counted in the deadline computation. Fed. R. Civ. P. 6(a)(1)(B). Pro se litigants are not exempt
from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989). Williams’s failure to timely amend by Wednesday, March 2, 2022 cannot be
excused based on his unfamiliarity with the Federal Rules of Civil Procedure and the Local Rules
of this Court. The Court’s website expressly notifies all pro se litigants: “The fact that you have
chosen self-representation does not excuse you from complying with the Federal Rules of Civil
Procedure … which are found in Title 28 of the United States Code, or this district’s Local Rules.”
(See https://www.tnwd.uscourts.gov/pdf/content/ProSeGuide.pdf.) Williams incorrectly suggests
that the Screening Order’s amendment deadline is somehow improper because “the Order didn’t
specifically say business days or not.” (ECF No. 14 at PageID 120.) As noted above, it is each
pro se litigant’s duty to familiarize himself with the applicable procedural rules.
For these reasons, there is adequate basis in the record to deny the Letter.
Nevertheless, because Williams is proceeding pro se, the Court GRANTS leave to amend
the Dismissed Claims within FOURTEEN (14) DAYS of the date of this Order. If Williams
wishes to amend the Dismissed Claims, he shall comply with the Screening Order’s conditions of
amendment. (See ECF No. 11 at PageID 112.) If Williams fails to amend the Dismissed Claims
in a timely manner, the Court will dismiss the Dismissed Claims with prejudice.
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II. SUGGESTION OF DEATH BY DEFENDANT STEWART
On March 15, 2022, the USMS process server who attempted to serve Officer Davis wrote
in the process receipt: “Officer is deceased.” (ECF No. 16 at Page 127.) On April 5, 2022,
Stewart’s counsel “formally suggest[ed] the death of Defendant Derrius Davis on or about January
3, 2021 in Shelby County, Tennessee.” (ECF No. 19.)
More than 120 days have passed since the summons was issued for Davis on February 9,
2022. (ECF No. 12.) Never having been served with the complaint, Davis is not a party in the
case. See Fed. R. Civ. P. 4(m).
Based on the USMS process receipt (ECF No. 16), defense counsel’s Suggestion of Death
about Davis (ECF No. 19), and expiration of Rule 4(m)’s 120-day service period, Williams is
ORDERED, within FOURTEEN (14) DAYS of the date of entry of this Order, to show cause why
Davis should remain a named-Defendant in the case. If Williams fails to timely show cause and
to provide an updated address for Officer Davis, the Court will dismiss with prejudice all claims
against Davis in this case and will remove Officer Davis as a named-Defendant pursuant to Rule
4(m).
III. CONCLUSION
For the reasons stated above:
A. The March 4, 2022 Order Dismissing With Prejudice The Consolidated
Complaint’s Claims That Were Dismissed Without Prejudice In The Screening Order (ECF No.
13) is VACATED;
B. The Letter (ECF No. 14) is GRANTED for the limited purpose of allowing
Williams to amend the Dismissed Claims within FOURTEEN (14) DAYS of the date of this Order
and in accordance with the conditions explained above; and
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C. Williams is ORDERED, within FOURTEEN (14) DAYS of the date of entry of
this Order, to SHOW CAUSE, in accordance with the conditions explained above, why Davis
should remain a named-Defendant in the case.
SO ORDERED, this 19th day of July, 2022.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE
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