Tracy Taylor v. Hubbard et al

Filing 37

ORDER denying 36 Motion to Amend the Complaint signed by Magistrate Judge Barbara A. McAuliffe on 3/23/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TRACY TAYLOR,

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CASE NO. 1:10-cv–00404-BAM PC
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO FILE A SECOND AMENDED
COMPLAINT

v.
SUSAN HUBBARD, et al.,

(ECF No. 36)

Defendants.
/

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Plaintiff Tracy Taylor is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. The complaint in this action was filed on March 8, 2010.

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(ECF No. 1.) Plaintiff filed a first amended complaint on July 16, 2010. (ECF No. 13.) On October

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26, 2011, an order issued requiring Plaintiff to either file an amended complaint or notify the Court

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of his willingness to proceed on the claims found to be cognizable in the first amended complaint.

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(ECF No. 20.) Plaintiff filed a notice stating he did not wish to file an amended complaint and

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wanted to proceed on the cognizable claims on November 9, 2011. (ECF No. 21.) On November

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15, 2011, orders issued dismissing Defendant Hubbard and Plaintiff’s Religious Land Use and

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Institutionalized Persons Act claims, with prejudice, for failure to state a cognizable claim, and

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directing Plaintiff to submit service documents within thirty days. (ECF Nos. 23, 24.) Plaintiff

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submitted the service documents on December 21, 2011. (ECF No. 26.) Defendants Harrington and

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Wegman have been served and motions for an extension of time have been granted. A responsive

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pleading is due on April 25, 2012. (ECF Nos. 33, 35.) On March 12, 2012, Plaintiff filed a motion

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for leave to file a second amended complaint. (ECF No. 36.)
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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 instance, Plaintiff has

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already filed an amended complaint so he may amend only with leave of the court or by written

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consent of the adverse party.

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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.’” 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)). 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)).

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Plaintiff states that he now has a copy of the first amended complaint and wishes to file a

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second amended complaint. However, Plaintiff has not filed a second amended complaint or

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supplied sufficient information for the Court to determine if leave to amend would prejudice the

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opposing party; is being sought in bad faith; would produce an undue delay in the litigation; or

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would be futile. Accordingly, Plaintiff’s motion for leave to file a second amended complaint is

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HEREBY DENIED.

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IT IS SO ORDERED.
Dated:
10c20k

March 23, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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