Montanez v. Gonzalez et al

Filing 87

ORDER GRANTING 68 Plaintiff's Motion to Amend His Complaint; ORDER Directing Clerk of Court to File Third Amended Complaint Lodged on July 5, 2013; and ORDER Directing Defendant Grimm to File a Responsive Pleading Within Twenty (20) Days, signed by Magistrate Judge Barbara A. McAuliffe on 11/14/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL MONTANEZ,

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Plaintiff,
v.
F. GONZALEZ, et al.,

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Defendant.

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Case No.: 1:10-cv-01931-AWI-BAM (PC)
ORDER GRANTING PLAINTIFF’S MOTION TO
AMEND HIS COMPLAINT
(ECF No. 68)
ORDER DIRECTING CLERK OF COURT TO
FILE THIRD AMENDED COMPLAINT LODGED
ON JULY 5, 2013
TWENTY-DAY DEADLINE FOR RESPONSIVE
PLEADING

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I.

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Plaintiff Paul Montanez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

Background

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s second

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amended complaint against Defendant Grimm for deliberate indifference to medical needs in violation

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of the Eighth Amendment and medical malpractice under state law. (ECF No. 33, 35.)

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On January 2, 2013, the Court issued a Discovery and Scheduling Order, which set the

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deadline to amend pleadings as July 2, 2013. (ECF No. 59.) On July 5, 2013, Plaintiff filed a motion,

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which was dated June 24, 2013, to amend his complaint. Plaintiff requested leave to amend in order to

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correct certain deficiencies of the complaint, which were identified as dates and medication records.

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(ECF No. 68.) Plaintiff also lodged his proposed third amended complaint. (ECF No. 69.) On
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August 12, 2013, the Court directed Defendant Grimm to respond to Plaintiff’s request to amend his

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complaint. (ECF No. 72.) On September 3, 2013, Defendant Grimm filed his opposition to the

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motion to amend, and Plaintiff replied on September 23, 2013. (ECF Nos. 75, 76.) The motion is

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deemed submitted. Local Rule 230(l).

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II.

Discussion
A. Legal Standard

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, a

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

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be freely given when justice so requires. Fed. R. Civ. P. 15(a). “Rule 15(a) is very liberal and leave to

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amend ‘shall be freely given when justice so requires.’” Amerisource Bergen Corp. v. Dialysis West,

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Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need not

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grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad

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faith; (3) produces an undue delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay

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by itself . . . is insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation

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

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58 (9th Cir. 1999)).

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B. Analysis
Plaintiff requests leave to amend his complaint to correct deficiencies, which he identifies as

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“Dates; medication; Records.” (ECF No. 68.) Defendant objects and argues that Plaintiff’s

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amendment is futile because it does not “correct” any dates, but adds three new dates that do not alter

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the allegations against Defendant Grimm. Defendant notes that two of the new dates concern

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treatment by Dr. Jae Lee, who is not a named defendant in this action. Defendant also argues that the

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proposed amendments to omit defendants that have already been dismissed by the court are

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unnecessary. Defendant further argues that Plaintiff’s efforts to expand his allegations against

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Defendant Grimm are unnecessary because the Court has determined that Plaintiff sufficiently alleged

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a claim for deliberate indifference. As a final matter, Defendant argues that allowing the amendment

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will cause undue delay because the Court will be required to screen the amended complaint.
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The Court has reviewed the proposed amended complaint and finds that leave to amend should

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be granted. In considering the relevant factors, there is no indication that the amendment will result in

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prejudice or is sought in bad faith. There also is no indication that the amendment will unduly delay

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these proceedings as the Court previously determined that Plaintiff has stated a cognizable claim for

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deliberate indifference against Defendant Grimm, the amendment requires no additional discovery and

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Defendant Grimm will be directed to file a responsive pleading. Further, although many of the

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proposed amended allegations are variations of those in his original complaint or relate to a non-party

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physician, Plaintiff has added factual allegations regarding actions taken by Defendant Grimm during

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the period of time at issue. Plaintiff’s proposed amendment therefore is not futile.

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III.

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For the reasons stated, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to amend the complaint, filed on July 5, 2013, is GRANTED;

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2. The Clerk of the Court is DIRECTED to file the Third Amended Complaint, lodged on
July 5, 2013 (ECF No. 69); and

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Conclusion and Order

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Defendant Grimm shall file a responsive pleading within twenty (20) days after the Third
Amended Complaint is filed.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 14, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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