The opinion of the court was delivered by: Judge Wiley Y. Daniel
ORDER AFFIRMING AND ADOPTING UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATIONS
THIS MATTER is before the Court on Plaintiff's Motion to Amend and Add Party Pursuant to Rule 15(c)2 [sic] and Rule 21 (#65), filed on June 1, 2005, and Defendants' Motion for Summary Judgment (#60), filed on May 12, 2005. These matters were referred to Magistrate Judge O. Edward Schlatter for a recommendation by Order of Reference dated December 19, 2003. I will address each of these motions separately below. I will also grant Plaintiff's Motion to Amend Objection of Magistrate Recommendation for Denial (#70), filed on June 24, 2005, which corrects a mistake in his objection.
I. PLAINTIFF'S MOTION TO AMEND AND ADD PARTY
In Plaintiff's Motion to Amend and Add Party, filed on June 1, 2005, Plaintiff asked this Court to add nine new defendants to this action under FED. R. CIV. P. 15(c)(2) and Rule 21. Plaintiff alleged that the proposed nine new defendants participated in new incidents of retaliation against him. Judge Schlatter issued a Recommendation for Denial of Motion to Amend on June 6, 2005, which is incorporated herein. See 28 U.S.C. § 636(b)(1); see also FED. R. CIV. P. 72(b); D.C.COLO.LCivR. 72.1. Magistrate Judge Schlatter recommends therein that Plaintiff's Motion to Amend and Add Party be denied for a number of reasons. I agree with Magistrate Judge Schlatter's Recommendation for the reasons noted in this order.
Plaintiff asserted that he should be permitted to amend his pleadings and add new parties to the action based on FED. R. CIV. P. 15(c)(2) and 21. Rule 15(c)(2) explains when an amendment relates back to the date of the original pleadings. See FED. R. CIV. P. 15(c)(2). Rule 15(a), not Rule 15(c)(2), guides whether a party may amend its pleadings. It provides that a party may amend its pleadings once as a matter of course before responsive pleadings are filed and, thereafter, only upon leave of the court or written consent of the adverse party. See FED. R. CIV. P. 15(a). Plaintiff filed his original Complaint on September 30, 2003, and an Amended Complaint on October 17, 2003. Plaintiff, therefore, cannot further amend his Amended Complaint as a matter of right. He may only amend with this Court's permission or Defendants' written consent. Moreover, "an amendment changing parties requires leave of the court even though made at a time when Rule 15 indicates it could be done as of course." 7 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 3d § 1688 (2001). Thus, Plaintiff may not add parties to the action without leave of the Court.
Even if Plaintiff requested permission to add parties, I must consider the impact of Rule 21. It authorizes a court, upon its own initiative or by a party's motion, to drop parties when the claims asserted against them do not arise out of the same transaction or occurrence or do not present some common question of law or fact. See FED. R. CIV. P. 21; see also 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 1683 (2001). Parties that meet either of the above conditions may be added to the action under Rule 20, which governs permissive joinder. See FED. R. CIV. P. 20; see also 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 1683 (2001).
If, however, a party fails to satisfy either of the preconditions for permissive joinder, the parties are misjoined. See 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 1683 (2001).
In the current case, Plaintiff attempts to add parties that were not involved in the same transactions or occurrences complained of in the original and amended complaints, and the claims against the proposed defendants do not include a question of law or fact common to the claims against the original defendants. Thus, joinder of the proposed defendants to the current action would be misjoinder and improper. Because joinder of the proposed defendants would be improper, I deny Plaintiff's Motion to Amend and Add Party.
II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendants' Motion for Summary Judgment, filed on May 12, 2005, was referred to Magistrate Judge Schlatter, who issued a Recommendation For Dismissal on December 1, 2005, which is incorporated herein by reference ("Recommendation"). See 28 U.S.C. § 636(b)(1); see also FED. R. CIV. P. 72(b); D.C.COLO.LCivR. 72.1. Magistrate Judge Schlatter recommends therein that Defendants' Motion for Summary Judgment be granted, in part, and that the action be dismissed without prejudice in its entirety because Plaintiff failed to exhaust available administrative remedies. Recommendation at 7-8. The Recommendation advised that written objections were due within ten days after service of the Recommendation. Id. at 9. On December 20, 2005, Plaintiff filed Plaintiff's Objection to Magistrates Recommendation to Grant Summary Judgment and Dismiss Without Prejudice ("Plaintiff's Objection"), which I will deem as timely. This necessitates a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1).
Plaintiff filed a pro se Complaint on September 30, 2003, and then filed an Amended Complaint on October 17, 2003, asserting three claims against numerous Colorado correctional facility officers. Defendants filed a Motion to Dismiss on March 4, 2004. After reviewing Magistrate Judge Schlatter's Recommendation For Partial Dismissal, I dismissed Plaintiff's first two claims in their entirety on February 4, 2005. Plaintiff's remaining claim alleges an Eighth Amendment violation based on Defendants' alleged deliberate indifference to his safety by labeling him a gang member and putting him in direct contact with rival gang members.
Defendants filed a Motion for Summary Judgment on May 12, 2005. In Defendants' Memorandum Brief in Support of Defendants' Motion for Summary Judgment, filed on May 9, 2005, Defendants argue that Plaintiff's remaining claim should be dismissed because Plaintiff failed to exhaust available administrative remedies, Plaintiff failed to state a claim under the Eighth Amendment, Plaintiff's claim for injunctive relief is moot, Plaintiff failed to allege the personal participation by Defendants Foster, Smelzer, Strode, and Hoffman necessary to establish liability, Defendants are entitled to qualified immunity, and Plaintiff failed to state a claim for punitive damages. Plaintiff filed a Motion to Deny Defendant(s) Motion for Summary Judgment on June 1, 2005, which I treat as a Response to Defendants' Motion for ...