Siegrist v. California Department of Corrections et al

Filing 34

ORDER Granting Plaintiff's Motion To Amend Complaint (ECF No. 30 ), signed by Magistrate Judge Stanley A. Boone on 1/13/2015. Second Amended Complaint due by 2/17/2015. (Attachments: # 1 Amended Complaint Form) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VANALBERT SIEGRIST,

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Plaintiff,
v.
J.J. JOHNSON, et al.,
Defendants.

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Case No.: 1:10-cv-01976-SAB (PC)
ORDER GRANTING PLAINTIFF’S MOTION
TO AMEND COMPLAINT
[ECF No. 30]

Plaintiff Vanalbert Siegrist is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendants Registered Nurse J.J. Johnson, Licensed

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Vocational Nurse Stringer, and Correctional Officer Dutra on Plaintiff’s claim of deliberate

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indifference to a serious medical need in violation of the Eighth Amendment.

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On December 8, 2014, Plaintiff filed a motion to amend his complaint. Defendants have not

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filed an opposition to Plaintiff’s motion, and on December 15, 2014, Defendant Dutra filed a motion

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for summary judgment on the issue of exhaustion of the administrative remedies.

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A plaintiff may amend the complaint once as a matter of course within twenty-one days after

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serving it or within twenty-one days after service of an answer or motion under Rule 12(b), (e), or (f),

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whichever is earlier. See Fed. R. Civ. P. 15(a)(1). When a party may no longer amend a pleading as a

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matter of right under Rule 15(a)(1), the party must either petition the court for leave to amend or

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obtain consent from the adverse parties. Fed. R. Civ. P. 15(a)(2).

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

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determining whether to grant leave to amend, the Court considers five factors: (1) bad faith; (2) undue

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delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has

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previously amended his complaint. Bolbol v. City of Daly City, 754 F.Supp.2d 1095, 1119 (N.D. Cal.

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2010) (citing Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004)).

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Because Plaintiff previously amended the complaint pursuant to the Court’s screening order,

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leave of Court is necessary for further amendment. Although Defendants Stringer and Dutra have

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made an appearance in this action, Defendant Dutra only has moved for summary judgment on the

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issue of exhaustion of the administrative remedies. Defendant Johnson has not yet made an

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appearance in the action. Plaintiff seeks to amend his complaint to add Doctor L. Nguyen as a

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Defendant in this action. Plaintiff attaches administrative grievances to his motion in which he

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challenges the actions taken by Doctor Nguyen in relation to his allegations raised in the first amended

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complaint. Indeed, Plaintiff raised allegations in his first amended complaint as to Doctor Nguyen,

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however, Nguyen was not named as a Defendant. See ECF No. 14, Order, 3:27, 4:1 “[b]ack at PVSP,

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Dr. Nguyen placed Plaintiff back on the same medication that almost killed him because he did not

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know what else to do.”)

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Plaintiff’s motion to amend shall be granted. There is no basis to find that Plaintiff’s motion to

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amend is in bad faith, done to cause delay, or that Defendants would be prejudiced, at this juncture, by

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amendment. Although Plaintiff has previously amended the complaint it was pursuant to the Court’s

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screening order. Accordingly, Defendants having filed no opposition, and upon consideration of the

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foregoing, the Court finds good cause to grant Plaintiff leave to amend the complaint.

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Although Plaintiff failed to comply with Local Rule 137(c) by not submitting a proposed

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amended complaint contemporaneously with the motion for leave to amend, the Court will excuse the

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requirement and direct Plaintiff to submit an amended complaint within thirty (30) days. Plaintiff is

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advised that the amended complaint must be “complete in itself without reference to the prior or

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superseded pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an
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original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567

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(citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at

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1474. In other words, even the claims that were properly stated in the first amended complaint must

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be completely stated again in the amended complaint. Finally, Plaintiff is advised that he is allowed

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leave to amend only to add his claim(s) as to Defendant Doctor Nguyen.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s motion to amend, filed December 8, 2014, is GRANTED; and

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Within thirty (30) days from the date of service of this order, Plaintiff may file a second
amended complaint.

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IT IS SO ORDERED.

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Dated:

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January 13, 2015
UNITED STATES MAGISTRATE JUDGE

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