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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS BRANCH, 12 ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND (Doc. 85.) Plaintiff, 13 14 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., 15 Defendants. 16 17 I. BACKGROUND 18 Louis Branch ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 19 with this civil action. Plaintiff filed the Complaint commencing this action on July 7, 2008. 20 (Doc. 1.) This case now proceeds on the Second Amended Complaint filed by Plaintiff on 21 August 25, 2010, against defendants Correctional Officer (“C/O”) Umphenour and Does 1 and 22 2, for failure to protect Plaintiff in violation of the Eighth Amendment, and against defendant 23 Umphenour for retaliation in violation of the First Amendment, in their individual capacities, 24 for money damages only.1 (Doc. 26.) 25 On October 30, 2012, the court entered a Scheduling Order setting deadlines in this 26 action, including a deadline to amend pleadings of April 30, 2013 and a discovery cut-off date 27 1 28 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. 1 1 of June 30, 2013. (Doc. 73.) On April 8, 2013, Plaintiff filed a motion to extend the deadline 2 to amend pleadings. (Doc. 83.) On April 15, 2013, the court entered an order granting 3 Plaintiff’s motion and extending the deadline to amend pleadings to May 31, 2013. On April 4 22, 2013, Plaintiff filed a motion for leave to amend. (Doc. 85.) Defendants have not filed an 5 opposition. Plaintiff’s motion to amend is now before the court. 6 7 II. RULE 15(a) - LEAVE TO AMEND 8 A. 9 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the 10 party=s pleading once as a matter of course at any time before a responsive pleading is served. 11 Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written 12 consent of the adverse party, and leave shall be freely given when justice so requires. Id. Here, 13 because Plaintiff has already amended the complaint twice and defendant Umphenour has filed 14 an answer to the complaint, Plaintiff requires leave of court to file a Third Amended 15 Complaint. Legal Standard 16 ARule 15(a) is very liberal and leave to amend >shall be freely given when justice so 17 requires.=@ AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 18 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts Aneed not grant leave to amend where 19 the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an 20 undue delay in the litigation; or (4) is futile.@ Id. The factor of A>[u]ndue delay by itself . . . is 21 insufficient to justify denying a motion to amend.=@ Owens v. Kaiser Foundation Health Plan, 22 Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 23 (9th Cir. 1999)). 24 B. 25 Plaintiff seeks to amend the complaint to add the proper names of the two Doe 26 Defendants. Upon review of Plaintiff=s proposed Third Amended Complaint, it appears that 27 Plaintiff has not materially amended the Second Amended Complaint except to identify 28 defendants Does 1 and 2 as C/O L. Szalai and C/O J. Alvarez, respectively. The court finds no Plaintiff’s Motion 2 1 evidence of bad faith by Plaintiff or futility in the amendment, and Defendants have not 2 opposed the motion to amend. Therefore, in the interest of justice, Plaintiff's motion for leave 3 to amend shall be granted, and the Clerk shall be directed to file the Third Amended Complaint 4 which was lodged on April 22, 2013. 5 III. CONCLUSION 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s motion for leave to amend, filed on April 22, 2013, is GRANTED; 8 2. The Clerk is directed to file the Third Amended Complaint which was lodged on 9 April 22, 2013; and 10 3. 11 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. 12 13 14 15 IT IS SO ORDERED. Dated: 16 17 18 July 9, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 19 20 21 22 23 24 25 26 27 28 3

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