Marsh v. Brown et al

Filing 29

ORDER DIRECTING Clerk to File Second Amended Complaint Which Was Lodged on January 23, 2012 27 , signed by Magistrate Judge Gary S. Austin on 12/20/12: Plaintiff is granted leave to file the Second Amended Complaint. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE MARSH,

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Plaintiff,
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v.
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JERRY BROWN, et al.,
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Defendants.
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______________________________)

1:10-cv-02353-LJO-GSA-PC
ORDER DIRECTING CLERK TO
FILE SECOND AMENDED
C O M P LA IN T W H IC H W A S
LODGED ON JANUARY 23, 2012
(Doc. 27.)

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Lawrence Marsh (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 8,

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2010. (Doc. 1.) The Court screened the Complaint and entered an order on August 29, 2011, dismissing

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the Complaint for failure to state a claim, with leave to amend. (Doc. 12.) On January 18, 2012,

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Plaintiff filed the First Amended Complaint. (Doc. 26.) On January 23, 2012, Plaintiff submitted a

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Second Amended Complaint which was lodged by the Court. (Doc. 27.)

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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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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 five days after he filed the First Amended

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Complaint. The Court now has before it, for screening, the First Amended Complaint and the lodged

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Second Amended Complaint.1 The Court has examined the First Amended Complaint and the Second

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Amended Complaint and finds that they are largely alike, except for some additions to the allegations

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by Plaintiff. Because the Court has not screened the First Amended Complaint, and Plaintiff has

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submitted a Second Amended Complaint with few changes, the Court finds good cause to allow Plaintiff

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to proceed with the Second Amended Complaint. The Court finds no evidence that Plaintiff seeks to

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amend in bad faith, or that allowing the amendment prejudices the defendants, produces an undue delay

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in the litigation, or is futile. Therefore, the Court shall allow Plaintiff to file a Second Amended

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Complaint at this stage of the proceedings, and the Second Amended Complaint shall supercede the First

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Amended Complaint. See Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012).

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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; and

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

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Plaintiff on January 23, 2012.

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IT IS SO ORDERED.

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Dated: December 20, 2012

/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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