Thornton v. Perez et al

Filing 16

ORDER Granting Plaintiff's 15 Motion to File a Second Amended Complaint signed by Magistrate Judge Jennifer L. Thurston on 11/15/2011. (Attachments: # 1 Amended Complaint Form) (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM CECIL THORNTON,

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1:11-cv-01136-JLT PC

Plaintiff,

ORDER GRANTING PLAINTIFF’S MOTION
TO FILE A SECOND AMENDED
COMPLAINT

v.
SONNY PEREZ, et al.,

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(Doc. 15)

Defendants.
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Plaintiff William Cecil Thornton, a state prisoner filed his first amended complaint alleging

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violations of his civil rights action pursuant to 42 U.S.C. § 1983 on November 3, 2011. (Doc. 13.)

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Now pending before the Court is Plaintiff’s November 10, 2011 motion to amend his complaint.

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(Doc. 15.)

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Federal Rule of Civil Procedure 15(a)(2) instructs courts to “freely give leave [to amend]

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when justice so requires.” Four factors commonly used by courts to determine the propriety of a

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motion to amend are: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4)

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futility of the amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th

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Cir. 2003) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)). Of these factors, the potential for

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prejudice to the opposing party “carries the greatest weight.” Eminence Capital, LLC, 316 F.3d at

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1052. The burden of showing prejudice falls on the party opposing amendment. DCD Programs,

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Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing of any
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of the remaining factors, “there exists a presumption under Rule 15(a) in favor of granting leave to

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amend.” Eminence Capital, LLC, 316 F.3d at 1052 (emphasis in the original).

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Applying these factors to this case, the Court finds that Plaintiff should be granted leave to

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amend. There is no evidence of bad faith or undue delay on the part of Plaintiff or that Defendant

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will be prejudiced by the amendment. The Court has not yet screened Plaintiff’s first amended

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complaint and so defendants have not yet been served with the complaint. In addition, the Court

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finds that amendment of Plaintiff’s complaint will not be futile. “[A] proposed amendment is futile

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only if no set of facts can be proved under the amendment to the pleadings that would constitute a

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valid and sufficient . . . defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)

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(citations omitted). Here, though Plaintiff’s motion does not provide sufficient facts regarding the

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nature of the newly proposed claim, the Court cannot determine whether amendment would be futile.

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Thus in light of the presumption afforded under Rule 15(a) in favor of granting leave to amend, the

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Court will GRANT Plaintiff’s motion.

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If Plaintiff amends, he is required to file a second amended complaint that is complete within

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itself without reference to any other pleadings. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th

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Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Local Rule 220. Further, Plaintiff is

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notified that “[u]nrelated claims against different defendants belong in different suits, not only to

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prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure

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that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number

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of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28

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U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Fed. R. Civ. P. 18. Plaintiff

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will not be permitted to proceed with a “mishmash of a complaint,” George, 507 F.3d at 607, and

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he is cautioned that if his second amended complaint fails to comply with Rule 18(a), the Court will

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dismiss the unrelated claims.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s motion to amend is GRANTED; and

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2.

If Plaintiff wishes to file a second amended complaint, he must file one document

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setting forth all of his claims; and
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The Clerk’s Office shall send Plaintiff a blank complaint form.

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IT IS SO ORDERED.

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Dated: November 15, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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