Schultz v. California Department of Corrections and Rehabilitation et al

Filing 43

ORDER Striking Second Amended Complaint as Unathorized re 42 , signed by Magistrate Judge Michael J. Seng on 2/16/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENNETH SCHULTZ,

Case No. 1:11-cv-00988-LJO-MJS (PC)

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Plaintiff,
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ORDER STRIKING SECOND AMENDED
COMPLAINT AS UNAUTHORIZED

v.
(ECF No. 42)

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STATE OF CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.
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I.

PROCEDURAL BACKGROUND
Plaintiff Kenneth Schultz, a state prisoner incarcerated at Corcoran State Prison

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(CSP), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42

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U.S.C. § 1983. This matter proceeds on the First Amended Complaint claim of medical

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indifference against Defendant Kim M.D. The action is in the discovery phase.

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On January 31, 2014, Plaintiff lodged with the Court a Second Amended Complaint,

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mistakenly stating thereon he did so pursuant to order of the Court. Tthe Second Amended

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Complaint is unauthorized and shall be stricken from the record for the reasons stated

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below.

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II.

LEGAL STANDARD

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A party may amend his pleading, after a responsive pleading is served, only by

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leave of the court, or by written consent of the adverse party, and leave shall be freely
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given when justice so requires. Fed. R. Civ. P. 15(a); Amerisource Bergen Corp. v. Dialysis

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West, Inc., 465 F.3d 946, 951 (9th Cir. 2006), quoting Fed. R. Civ. P. 15(a).
“In determining whether to grant leave to amend, the court considers five factors: (1)

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bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment;

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and (5) whether the plaintiff has previously amended his complaint. Bolbol v. City of Daly

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City, 754 F.Supp.2d 1095, 1119 (N.D. Cal. 2010), citing Nunes v. Ashcroft, 375 F.3d 805,

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808 (9th Cir. 2004). Prejudice to the opposing party carries the greatest weight, and absent

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prejudice, or a strong showing of any of the remaining factors, there exists a presumption in

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favor of granting leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

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1052 (9th Cir. 2003).
A motion to amend must satisfy the terms of the court‟s scheduling order. NAS

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Electronics, Inc., v. Transtech Electronics PTE Ltd., 262 F.Supp.2d 134, 150 (S.D.N.Y.

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2003). Any modification of the scheduling order requires good cause and the judge‟s

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consent. Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 609

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(9th Cir. 1992) (requiring a showing of good cause under Rule 16 to amend complaint

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beyond scheduling order deadline).
“The good cause standard „primarily considers the diligence of the party seeking the

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amendment‟ . . . „carelessness is not compatible with a finding of diligence and offers no

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reason for a grant of relief.‟ ” C.F. v. Capistrano Unified School Dist., 656 F.Supp.2d 1190,

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1194 (C.D. Cal. 2009). “[I]n determining good cause [under Rule 16 the court] considers

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four factors: „(1) the explanation for the failure to timely move for leave to amend; (2) the

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importance of the amendment; (3) potential prejudice in allowing the amendment; and (4)

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the availability of a continuance to cure such prejudice.‟ ” (Id. at 1196.)

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III.

DISCUSSION

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The Second Amended Complaint is unauthorized. It was filed after Defendant

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responded to the First Amended Complaint, without the consent of Defendant and without

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leave of the Court. Contrary to Plaintiff‟s assertion, the Court did not order Plaintiff to file a

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second amended complaint. (Perhaps Plaintiff read the Court‟s inclusion in the Discovery
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and Scheduling Order of a deadline to amend pleadings (ECF No. 26) as authorization or

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direction to file an amended pleading, but it is not.)
If Plaintiff desires to file an amended pleading, he must do so consistent with the

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standards above and either upon consent of Defendant or motion to the Court.

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IV.

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ORDER
Accordingly, and for the reasons stated, it is HEREBY ORDERED that the Second

Amended Complaint lodged on January 31, 2014 (ECF No. 42) is stricken from the record.

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IT IS SO ORDERED.
Dated:

February 16, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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