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Welty v. Meletis

United States District Court, E.D. Virginia, Richmond Division

June 19, 2018

JERRY WELTY, JR., Plaintiff,
v.
PETE MELETIS, et al., Defendants.

          MEMORANDUM OPINION

          JOHN A. GIBNEY, JR UNITED STATES DISTRICT JUDGE.

         Jerry Welty, Jr., a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action. On January 5, 2015, Welty was severely beaten by another inmate in the Prince William Manassas Regional Adult Detention Center. Welty contends that, inter alia, his rights under the Eighth Amendment were violated because of Defendants'[1] indifference to inadequate security measures at the Jail that led to the assault. For the reasons set forth below, Welty will be DIRECTED to file a Third Particularized Complaint and Defendants' Motions to Dismiss will be DENIED WITHOUT PREJUDICE.

         I. Procedural History

         By Memorandum Order entered on January 27, 2017, the Court directed Welty to file a particularized complaint that provided each defendant with fair notice of the facts and legal basis upon which his or her liability rests. (ECF No. 48.) Thereafter, Welty filed his First Particularized Complaint (ECF No. 50.) By Memorandum Order entered on September 14, 2017, the Court informed Welty that his First Particularized Complaint failed to state a claim for relief. (ECF No. 66, at 5.) The Court gave Welty another opportunity to file a proper complaint. (Id. at 6.) On October 11, 2017, Welty filed his Second Particularized Complaint. (ECF No. 67.) On November 30, 2017, the Court directed the Marshal to serve Defendants with the Second Particularized Complaint. (ECF No. 70.)

         On January 3, 2018, Defendants moved to dismiss the Second Particularized Complaint ("First Motion to Dismiss, " ECF No. 73.) On March 5, 2018, Welty filed an Amended Complaint. (ECF No. 80.) On March 15, 2018, Defendants filed a motion to dismiss the Amended Complaint ("Second Motion to Dismiss, " ECF No. 81). On April 12, 2018, Welty filed his Opposition to the Second Motion to Dismiss. (ECF No. 85.)

         Welty also has filed a Motion for a Temporary Restraining Order (ECF No. 77) and a Motion for an Injunction. (ECF No. 83.)

         II. Analysis

         A. Amendments and the Motions to Dismiss With respect to amendments, the pertinent rule provides:

(a) Amendments Before Trial.

         (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.
(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of ...

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