Branch v. Grannis, et al.,

Filing 93

ORDER GRANTING Plaintiff's Motion for Leave to Amend 85 ; ORDER DIRECTING Clerk to File Third Amended Complaint Lodged on April 22, 2013 86 , signed by Magistrate Judge Gary S. Austin on 7/9/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

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ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND
(Doc. 85.)

Plaintiff,

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1:08-cv-01655-AWI-GSA-PC

vs.

ORDER DIRECTING CLERK TO FILE
THIRD AMENDED COMPLAINT
LODGED ON APRIL 22, 2013
(Doc. 86.)

N. GRANNIS, et al.,

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Defendants.

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I.

BACKGROUND

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Louis Branch ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

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with this civil action. Plaintiff filed the Complaint commencing this action on July 7, 2008.

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(Doc. 1.) This case now proceeds on the Second Amended Complaint filed by Plaintiff on

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August 25, 2010, against defendants Correctional Officer (“C/O”) Umphenour and Does 1 and

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2, for failure to protect Plaintiff in violation of the Eighth Amendment, and against defendant

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Umphenour for retaliation in violation of the First Amendment, in their individual capacities,

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for money damages only.1 (Doc. 26.)

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On October 30, 2012, the court entered a Scheduling Order setting deadlines in this

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action, including a deadline to amend pleadings of April 30, 2013 and a discovery cut-off date

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On May 11, 2011, the Court dismissed all other claims and defendants from this action, based on
Plaintiff’s failure to state a claim. (Doc. 29.) The Doe defendants have not been served.
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of June 30, 2013. (Doc. 73.) On April 8, 2013, Plaintiff filed a motion to extend the deadline

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to amend pleadings. (Doc. 83.) On April 15, 2013, the court entered an order granting

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Plaintiff’s motion and extending the deadline to amend pleadings to May 31, 2013. On April

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22, 2013, Plaintiff filed a motion for leave to amend. (Doc. 85.) Defendants have not filed an

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opposition.
Plaintiff’s motion to amend is now before the court.

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II.

RULE 15(a) - LEAVE TO AMEND

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A.

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

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party=s pleading once as a matter of course at any time before a responsive pleading is served.

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Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written

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consent of the adverse party, and leave shall be freely given when justice so requires. Id. Here,

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because Plaintiff has already amended the complaint twice and defendant Umphenour has filed

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an answer to the complaint, Plaintiff requires leave of court to file a Third Amended

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Complaint.

Legal Standard

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ARule 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.

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2006) (quoting Fed. R. Civ. P. 15(a)). However, courts Aneed not grant leave to amend where

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

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undue delay in the litigation; or (4) is futile.@ Id. The factor of A>[u]ndue delay by itself . . . is

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insufficient to justify denying a motion to amend.=@ Owens v. Kaiser Foundation Health Plan,

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Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58

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(9th Cir. 1999)).

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B.

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Plaintiff seeks to amend the complaint to add the proper names of the two Doe

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Defendants. Upon review of Plaintiff=s proposed Third Amended Complaint, it appears that

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Plaintiff has not materially amended the Second Amended Complaint except to identify

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defendants Does 1 and 2 as C/O L. Szalai and C/O J. Alvarez, respectively. The court finds no

Plaintiff’s Motion

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evidence of bad faith by Plaintiff or futility in the amendment, and Defendants have not

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opposed the motion to amend. Therefore, in the interest of justice, Plaintiff's motion for leave

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to amend shall be granted, and the Clerk shall be directed to file the Third Amended Complaint

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which was lodged on April 22, 2013.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for leave to amend, filed on April 22, 2013, is GRANTED;

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2.

The Clerk is directed to file the Third Amended Complaint which was lodged on

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April 22, 2013; and

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3.

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The court shall screen the Third Amended Complaint and initiate service of
process upon defendants C/O L. Szalai and C/O J. Alvarez in due time.

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IT IS SO ORDERED.
Dated:

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July 9, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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