Palmer v. Woodford et al
Filing
98
ORDER STRIKING 97 Second Amended Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 3/16/2012. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WILL MOSES PALMER, III,
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CASE NO. 1:06-cv-00512-LJO-BAM PC
Plaintiff,
ORDER STRIKING SECOND AMENDED
COMPLAINT
v.
(ECF No. 97)
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JEANNE WOODFORD, et al.,
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Defendants.
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Plaintiff Will Moses, Palmer, III (“Plaintiff”) is a state prisoner proceeding pro se in this civil
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rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the first amended
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complaint, filed August 29, 2007, against Defendants Jordnt and Bardonnex for retaliation and denial
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of access to the court in violation of the First Amendment. On December 22, 2011 Defendants filed
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an answer to the first amended complaint. A second amended complaint was lodged on March 14,
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2012. (ECF No. 97.)
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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). “Rule 15(a) is very liberal and
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leave to amend ‘shall be freely given when justice so requires.’” Amerisource Bergen Corp. v.
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Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However,
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courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2)
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is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” Id. The factor
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of “‘[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend.’” Owens v.
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Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade,
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198 F.3d 752, 757-58 (9th Cir. 1999)).
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Plaintiff has previously filed an amended complaint and an answer has been filed. Plaintiff
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did not file a motion to amend, nor has the Court granted leave to amended. Therefore the amended
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complaint shall be stricken from the record.
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Accordingly, it is HEREBY ORDERED that Plaintiff’s second amended complaint, lodged
March 14, 2012, is STRICKEN from the record.
IT IS SO ORDERED.
Dated:
cm411
March 16, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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