Rodriguez v. Isaac et al

Filing 26

ORDER GRANTING Plaintiff's Motion for Leave to File Amended Complaint 25 , signed by Magistrate Judge Michael J. Seng on 2/29/12: Plaintiff's Third Amended Complaint is due within thirty (30) days from the date of service of this Order. (Attachments: # 1 Amended Complaint-blank form) (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NOEL RODRIGUEZ,

CASE NO.

1:09-CV-1784-AWI-MJS (PC)

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Plaintiff,
ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO FILE AMENDED
COMPLAINT

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v.

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ISAAC, et al.

(ECF No. 25)
Defendants

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/
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I.

PROCEDURAL HISTORY

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On October 9, 2009, Plaintiff Noel Rodriguez, a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1.)

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The Court issued an Order Dismissing Complaint on July 12, 2011 for failure to state a

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cognizable claim. (Doc. 21.) Plaintiff was granted leave to amend and filed his First

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Amended Complaint on August 1, 2011. (Doc. 22.) The Court issued an Order Dismissing

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First Amended Complaint on October 19, 2011 for failure to state a cognizable claim. (Doc.

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23.) Plaintiff was granted leave to amend and filed his Second Amended Complaint on

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November 2, 2011, (Doc. 24.) It has not yet been screened by the Court.

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Before the Court is Plaintiff’s February 27, 2012 Motion for Leave to File an
Amended Complaint. (ECF No. 25.)

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II.

ANALYSIS
Plaintiff seeks leave to file an amended complaint to correct the relief requested to

include nominal and compensatory damages.

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In the case of a motion for an amended pleading, under Rule 15(a) of the Federal

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Rules of Civil Procedure, a party may amend the party's pleading once as a matter of

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course at any time before a responsive pleading is served. Otherwise, a party may amend

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only by leave of the court, or by written consent of the adverse party, and leave shall be

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freely given when justice so requires. Fed.R.Civ.P. 15(a).

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“Rule 15(a) is liberal and leave to amend shall be given when justice so requires.

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Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)

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(quoting Fed.R.Civ.P. 15(a)). “In determining whether to grant leave to amend, the court

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considers five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party;

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(4) futility of amendment; and (5) whether the plaintiff has previously amended his

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complaint. Bolbol v. City of Daly City, 754 F.Supp.2d 1095, 1119 (N.D.Cal. 2010) (citing

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Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004)).

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Plaintiff’s presently operative Second Amended Complaint has not been screened,

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and no responsive pleading or motion has been filed in this matter. There is no suggestion

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of bad faith, delay, prejudice to Defendants, or futility of amendment. Prior amendments

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have been with leave of the Court pursuant to screening order. The requested amendment

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will allow Plaintiff to seek relief not included in the Second Amended Complaint. Upon

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consideration of the foregoing, the Court finds good cause to grant the relief sought.

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Amended pleadings must be complete within themselves without reference to

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another pleading. Partial amendments are not permissible. Local Rules for the U.S.D.C.

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Eastern District, Rule 220. Any pleading must contain “a short and plain statement of the

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claim showing that the pleader is entitled to relief ....“ Fed.R.Civ.P. 8(a)(2). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

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129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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(2007)). A plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim that is plausible on its face.’“ Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 1949–50.
The opportunity to amend it is not for the purposes of adding new defendants or

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claims except as specifically allowed by this order.

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III.

ORDER

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Good cause having been presented to the Court, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s February 27, 2012 Motion to File an Amended Complaint, is
GRANTED.

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2.

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Plaintiff’s Third Amended Complaint is due within thirty (30) days from the
date of service of this Order.

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3.

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Plaintiff shall caption the amended complaint “Third Amended Complaint”
and refer to the case number 1:09-CV-1784-AWI-MJS (PC); and

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4.

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If Plaintiff fails to comply with this order, this action will be dismissed.

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IT IS SO ORDERED.

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Dated:
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February 29, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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