Cotner v. State of Okl. ex rel. Creek County
| Decision Date | 29 November 1993 |
| Citation | 61 F.3d 915 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before MOORE, BARRETT, and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Plaintiff-Appellant Robert E. Cotner ("Cotner") appeals the dismissal of his pro se complaint. After the district court granted his motion to proceed in forma pauperis, Cotner brought his original complaint seeking a declaratory judgment pursuant to 28 U.S.C. 2201 that Defendants had violated his federal constitutional rights to due process in the Oklahoma state courts. The district court referred the matter to a magistrate, and the magistrate recommended dismissal of the complaint as nothing more than an improper attempt to circumvent the state appellate process. In response, Cotner filed an objection to the magistrate's report and moved to amend his complaint. He then filed an amended complaint. The district court reviewed and adopted the magistrate's recommendation, declining to exercise jurisdiction over Cotner's original complaint and denying his motion to amend. While we agree with the district court's reasoning with respect to the original complaint, we hold that the district court abused its discretion when it refused to allow Cotner to amend that complaint.
Fed.R.Civ.P. 15(a) provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served...." Defendants have served no responsive pleadings in this matter, and this was Cotner's first attempt to amend his complaint. Rule 15, therefore, precludes the district court's denial. While we are mindful of the district court's concern with pro se litigants who frequently file and change the nature of their actions, this concern cannot serve to deprive Cotner of this right to amend his complaint...
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