10-2357 Vitrano v. U.S.

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Criminal Procedure
Successive appeals

Dismissal is not a proper remedy where a prisoner moves to amend a habeas corpus motion.

“[T]he district court concluded, Vitrano plainly abandoned his original claims, which it simultaneously dismissed. That seems to us to put the cart a bit before the horse. Had Vitrano wanted to completely abandon his original claims, he could have moved to dismiss them, see Potts, 210 F.3d at 771; Felder, 113 F.3d at 698, or simply stopped pursuing his case altogether. (Declining an opportunity to file a reply brief, which was required neither by the applicable rules or the district court in this case, may be foolish but does not constitute abandonment of one’s claims.) Instead, he took an intermediate route; only if the district court granted his motion to amend would his original claims have been supplanted. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004) (‘It is axiomatic that an amended complaint supersedes an original complaint and renders the original complaint void.’). Otherwise, he would be stuck with his feeble (and perhaps, at least in part, fraudulent) original claims. Taking the motion to amend path is in this sense a gamble; some might even call it game play. Cf. Garrett, 178 F.3d at 943 (distinguishing the situation in Garrett from that in Felder by noting that there was no indication that Garrett was attempting to ‘obtain a tactical advantage in the face of impending defeat’). But that is why district courts are vested with such wide discretion when it comes to evaluating the merits of Rule 15(a)(2) motions to amend; if a motion doesn’t pass the sniff test, i.e., reeks of bad faith or dilatory motive, the district court is permitted to deny it and hold the plaintiff to his original complaint. The district court did not give Vitrano’s motion to amend that consideration. Instead, it assumed that Vitrano was abandoning his initial claims altogether merely by filing the motion. Maybe that was his ultimate intent, but until the district court rules on the motion to amend, and Vitrano makes his next move, we cannot know for sure.”

Vacated and Remanded.

10-2357 Vitrano v. U.S.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Tinder, J.

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