IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

James W. Wirtz, III, : 

 Plaintiff, : Case No. 2:11-cv-1131 

 v. : JUDGE GEORGE C. SMITH 

 Magistrate Judge Kemp 

Timothy Buchanan, et al., : 

 Defendants. : 

ORDER

Plaintiff, James W. Wirtz, III, an inmate housed at 

Ross Correctional Institution, filed a civil rights 

complaint on December 22, 2011. On February 8 and February 

10, 2012, Defendants filed answers to the complaint. On 

February 24, 2012, Mr. Wirtz filed a motion for leave to 

amend the complaint, which is the motion presently before 

the Court. Defendants have opposed Mr. Wirtz’s motion. 

Mr. Wirtz did not file a reply and the deadline for doing 

so has passed. 

Mr. Wirtz does not seek leave to amend the body of the 

complaint but rather seeks leave to file exhibits to the 

complaint. According to his affidavit, which was filed 

with his motion for leave to amend, Mr. Wirtz “was made to 

give his Complaint and Exhibits to his unit Sargent” who 

would then take those documents to the Institutional 

Cashier, who would send all of the paperwork to the Clerk 

of Courts. When Mr. Wirtz’s complaint was filed, there 

were no exhibits attached to it. Mr. Wirtz’s motion does 

not describe the exhibits that he claims should have been 

filed except as the “evidence [described] in this 

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complaint.” See Mot. at Ex. 2. 

Federal Rule of Civil Procedure 15 provides that “[a] 

party may amend its pleading once as a matter of course 

within: . . . (B) if the pleading is one to which a 

responsive pleading is required, 21 days after service of a 

responsive pleading . . . .” Fed. R. Civ. P. 15(a)(1). 

When Mr. Wertz filed his motion for leave to amend his 

complaint on February 24, he could have amended his 

pleading as a matter of course without permission from the 

Court. 

After failing to amend his complaint within twenty-one 

days after service of the answers, Mr. Wertz “may amend 

[his] pleading only with the opposing party’s written 

consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 

Rule 15(a)(2) requires the Court to grant leave to amend 

“freely” if “justice so requires.” Reasons for denying a 

motion for leave to amend include undue delay, prejudice to 

the opposing party, and futility of the amendment. See 

generally Phelps v. McClellan, 30 F.3d 658, 662 (6th Cir. 

1994); Midkiff v. Adams County Reg’l Water Dist., 409 F.3d 

758, 767 (6th Cir. 2005). 

Here there was no undue delay and no resulting 

prejudice to Defendants. In addition, it appears that the 

omission of the exhibits was a ministerial error beyond the 

control of Mr. Wirtz, and was one which Mr. Wirtz sought to 

correct in a timely fashion. See United States v. Lake 

City Malleable, Inc., 258 F. Supp. 241, 242 (N.D. Ohio 

1966) (granting a motion for leave to amend where there was 

a typographical error even though that error caused a 

material change to the plaintiff’s claim because permitting 

the correction was in the interest of justice). 

Furthermore, permitting Mr. Wirtz to add exhibits that 

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merely provide documentary support for the allegations in 

the complaint will not affect the claims brought. 

Therefore, it is in the interest of justice to grant Mr. 

Wirtz leave to supplement the complaint. 

For the reasons set forth above, the Court grants Mr. 

Wirtz’s motion for leave to amend the complaint (# 12). 

Mr. Wirtz is granted leave to file, within fourteen days, 

the exhibits that he included with his complaint when he 

originally provided it to his unit sergeant for filing. 

Procedure for Reconsideration

 Any party may, within fourteen days after this Order 

is filed, file and serve on the opposing party a motion for 

reconsideration by a District Judge. 28 U.S.C. 

§636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern 

Division Order No. 91-3, pt. I., F., 5. The motion must 

specifically designate the order or part in question and 

the basis for any objection. Responses to objections are 

due fourteen days after objections are filed and replies by 

the objecting party are due seven days thereafter. The 

District Judge, upon consideration of the motion, shall set 

aside any part of this Order found to be clearly erroneous 

or contrary to law. 

 This order is in full force and effect, 

notwithstanding the filing of any objections, unless stayed 

by the Magistrate Judge or District Judge. S.D. Ohio L.R. 

72.4. 

/s/ Terence P. Kemp 

United States Magistrate Judge

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