Perez v. Adams et al
Filing
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ORDER for Defendant to File Response to Plaintiff's 24 Motion to Amend within Thirty Days,signed by Magistrate Judge Gary S. Austin on 03/19/2015. ( 30-Day Deadline) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARCO PEREZ,
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1:11-cv-01820-GSA-PC
Plaintiff,
ORDER FOR DEFENDANT TO FILE
RESPONSE TO PLAINTIFF’S MOTION TO
AMEND WITHIN THIRTY DAYS
(Doc. 24.)
vs.
D. G. ADAMS, et al.,
Defendants.
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Marco Perez (APlaintiff@) is a state prisoner proceeding pro se with this civil rights
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action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action
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on November 1, 2011. (Doc. 1.) This case now proceeds on the original Complaint against
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defendants Schneider, Carter, Pimental, and Byrum for use of excessive force and deliberate
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indifference to medical needs.1 (Id.) This case is now in the discovery phase. (Doc. 20.)
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On March 16, 2015, Plaintiff lodged a proposed First Amended Complaint, together
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with a motion to amend the complaint. (Doc. 24.) Plaintiff requests leave to amend the
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complaint to “name the right defendants and correct all errors in his complaint.” (Id. at 1.)
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Plaintiff states that “in his original complaint [plaintiff] wrongly named R. Schneider and T.
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Carter, [and] plaintiff asks to drop these defendants and add the correct defendants.” (Id.)
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On June 18, 2014, the court issued an order dismissing all other claims and defendants from
this action, for failure to state a claim. (Doc. 9.)
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Plaintiff asserts that on January 19, 2015, pursuant to Rule 15(a), he asked for Defendants’
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consent prior to amending his complaint and “[t]hey appeared to agree under the above mention
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(sic) reasons.” (Id.)
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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the
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party=s pleading once as a matter of course at any time before a responsive pleading is served.
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Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written
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consent of the adverse party, and leave shall be freely given when justice so requires. Id. Here,
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because Defendants have filed an Answer to the complaint, Plaintiff requires leave of court to
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file an amended complaint unless Defendants have given “written consent.” Plaintiff merely
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claims that Defendants “appeared” to consent to amendment of the complaint. This is not
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sufficient to satisfy Rule 15(a)’s requirement of “written consent.” Thus, Defendant shall be
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required to file a written response to Plaintiff’s motion to amend within thirty days.
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Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of service
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of this order, Defendants shall file a written response to Plaintiff’s motion to amend, indicating
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either (1) consent to the filing of the proposed amended complaint submitted by Plaintiff, or (2)
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opposition to the motion to amend.
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IT IS SO ORDERED.
Dated:
March 19, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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