Kitchen v. Rouch et al

Filing 10

ORDER Directing Clerk to File Second Amended Complaint 7 which was Lodged on July 6, 2010, signed by Magistrate Judge Gary S. Austin on 12/8/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS KITCHEN,

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Plaintiff,
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v.
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PATRICIA ROUCH, et al.,
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Defendants.
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____________________________________)

1:10-cv-00663-GSA-PC
ORDER DIRECTING CLERK TO FILE
SECOND AMENDED COMPLAINT
WHICH WAS LODGED ON JULY 6,
2010
(Doc. 6.)

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Thomas Kitchen ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 15, 2010. (Doc. 1.)

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On June 10, 2010, Plaintiff filed the First Amended Complaint. (Doc. 6.) On July 6, 2010, Plaintiff

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lodged a Second Amended Complaint.1 (Doc. 7.) The issue here is whether Plaintiff may file a Second

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Amended Complaint at this stage of the proceedings.

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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. Fed. R. Civ. P.

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15(a). Otherwise, a party may amend only by leave of the court or by written consent of the adverse

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party, and leave shall be freely given when justice so requires. Id. Here, because Plaintiff has already

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amended the complaint once, Plaintiff requires leave of court to file a Second Amended Complaint.

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

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AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) (quoting Fed. R.

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Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices

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Although Plaintiff has entitled the lodged amended complaint “Third Amended Complaint,” this is Plaintiff’s
proposed Second Amended Complaint for this action.

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the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is

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futile.” Id. The factor of “‘[u]ndue delay by itself . . . is insufficient to justify denying a motion to

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amend.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting

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Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)).

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Plaintiff submitted the Second Amended Complaint less than one month after he filed the First

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Amended Complaint. Plaintiff indicates in the Second Amended Complaint that he is amending the

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complaint to include a malpractice cause of action. (Lodged 2ACP, Doc. 7 at 1:16-19.) The Court now

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has before it, for screening, the First Amended Complaint and the lodged Second Amended Complaint.2

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Because the Court has not screened the First Amended Complaint or thoroughly reviewed the Second

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Amended Complaint, and Plaintiff seeks to amend the First Amended Complaint to add a cause of

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action, the Court finds good cause to allow Plaintiff to proceed with the Second Amended Complaint.

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The Court finds no evidence that Plaintiff seeks to amend in bad faith, or that allowing the amendment

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prejudices the defendants, produces an undue delay in the litigation, or is futile. Therefore, the Court

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shall allow Plaintiff to file a Second Amended Complaint at this stage of the proceedings, and the

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Second Amended Complaint shall supercede the First Amended Complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967).

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff is granted leave to file a Second Amended Complaint;

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2.

The Clerk is DIRECTED to file the Second Amended Complaint which was lodged by

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Plaintiff on July 6, 2010; and

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3.

The Court shall screen the Second Amended Complaint in due time.

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IT IS SO ORDERED.

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Dated:
6i0kij

December 8, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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The Court is required to screen complaints brought by prisoners, such as Plaintiff, seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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