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WELLS v. EDWARDS
SALLY SHUSHAN, Magistrate Judge
Plaintiff has filed a document entitled "Motion to Proceed to Trial." Rec. Doc. 63. That motion was apparently filed in response to Dr. Mauterer's motion for summary judgment, and the Court interprets it as a request that the claim against Dr. Mauterer be allowed to proceed to trial. However, for the reasons set forth in the separate order issued this date, the claims against Dr. Mauterer have been dismissed. Accordingly, plaintiff's motion is DENIED.
However, the Court notes that plaintiff's claim against Dr. Goldsby is still set for trial. That claim will proceed to trial, unless he also files and prevails on a pretrial dispositive motion.
Plaintiff has also filed a motion to amend the complaint to assert a negligence claim against Major Randy Pinion for allegedly losing plaintiff's medical records. Rec. Doc. 73. The Federal Rules of Civil Procedure provide:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Fed.R.Civ.P. 15(a). Because answers have been filed and there has been no consent in writing to the proposed amendments, plaintiff may amend his complaint only by leave of this Court.
In ruling on a motion to amend, the Court may consider, inter alia, the futility of the proposed amendments. Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). It would clearly be futile to allow the proposed amendment to add a negligence claim against Major Pinion. Negligence claims are not cognizable under 42 U.S.C. § 1983. Baker v. McCollan, 443 U.S. 137, 146 (1979);Price v. Roark, 256 F.3d 364, 370 (5th Cir. 2001). Accordingly, plaintiff's motion to amend the complaint is DENIED.
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