Bull v. Scribner, et al.

Filing 45

ORDER denying 43 Motion for leave to amend complaint signed by Magistrate Judge Gary S. Austin on 9/22/2011. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMMANUEL TYRONE BULL,

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Plaintiff,

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1:05-cv-01255-LJO-GSA-PC
ORDER DENYING MOTION FOR LEAVE
TO AMEND COMPLAINT
(Doc. 43.)

v.
A. K. SCRIBNER, et al.,

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Defendants.
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I.

BACKGROUND

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Emmanuel Tyrone Bull (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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October 3, 2005. (Doc. 1.) This action now proceeds on Plaintiff's First Amended Complaint filed

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on February 1, 2008, against defendants Brown and Rivera for an incident of excessive force on

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September 18, 2002, in violation of the Eighth Amendment.1 (Doc. 18.) On April 29, 2011, Plaintiff

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filed a motion entitled “Motion to Alter or Amend the Judgment, Process Receipt and Return,

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Summons in Civil Case, Notice of Submission of Documents,” in which Plaintiff seeks leave to

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amend the complaint. (Doc. 43.)

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II.

MOTION TO AMEND

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Plaintiff seeks leave to amend the complaint to correct the spelling of defendants’ names.

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Plaintiff explains that since he filed the complaint, he has learned that defendant J. Brown’s name

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is J. M. Brown, and defendant Y. Rivera’s name is Y. Rivera-Linares.

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On December 2, 2010, the Court dismissed the remaining claims and defendants from this action, based on
Plaintiff’s failure to state a claim. (Doc. 31.)

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s

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pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,

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a party may amend only by leave of the court or by written consent of the adverse party, and leave

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shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, Plaintiff has filed

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a First Amended Complaint and a Second Amended Complaint, and no other parties have appeared.

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(Docs. 18, 28.) Therefore, Plaintiff may not file another amended complaint without leave of court.

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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so

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requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)

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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue

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delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is insufficient

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to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d

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708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)) The

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“court’s discretion to deny leave to amend is particularly broad where the court has already given

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the plaintiff an opportunity to amend his complaint.” Fidelity Financial Corp. v. Federal Home Loan

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Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986).

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The Court finds no good cause for Plaintiff to amend the complaint at this stage of the

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proceedings merely to clarify the spelling of defendants’ names. For defendant Brown, Plaintiff only

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seeks to add a middle initial. The change in the spelling of defendant Rivera’s last name appears to

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have been made after the events at issue in the complaint occurred, and changing the name in the

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complaint may cause confusion. For both defendants, these name changes do not affect the identity

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of the defendants, the allegations, the merits of the case, or service of process.2 Moreover,

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amendment of the complaint at this stage of the proceedings will cause an undue delay in the

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litigation. This action has been pending for nearly six years, and further delay will prejudice

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defendants. “Unnecessary delay inherently increases the risk that witnesses’ memories will fade and

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Based on information provided by Plaintiff, including the spelling of defendants’ names as J. M. Brown
and Y. Rivera-Linares, the Court, by separate order, shall direct the Marshal to initiate re-service upon the
defendants.

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evidence will become stale.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); also see

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Sibron v. New York, 392 U.S. 40-57, 88 S.Ct. 1889 (1968). Therefore, Plaintiff's motion for leave

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to amend shall be denied.

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III.

CONCLUSION

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Based on this analysis, the Court finds that Plaintiff has not shown good cause to amend the

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complaint at this time. Therefore, IT IS HEREBY ORDERED that Plaintiff's motion for leave to

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amend the complaint is DENIED.

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IT IS SO ORDERED.
Dated:
6i0kij

September 22, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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