Perez v. Adams et al

Filing 25

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCO PEREZ, 12 13 14 15 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. 16 17 Marco Perez (APlaintiff@) is a state prisoner proceeding pro se with this civil rights 18 action filed pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action 19 on November 1, 2011. (Doc. 1.) This case now proceeds on the original Complaint against 20 defendants Schneider, Carter, Pimental, and Byrum for use of excessive force and deliberate 21 indifference to medical needs.1 (Id.) This case is now in the discovery phase. (Doc. 20.) 22 On March 16, 2015, Plaintiff lodged a proposed First Amended Complaint, together 23 with a motion to amend the complaint. (Doc. 24.) Plaintiff requests leave to amend the 24 complaint to “name the right defendants and correct all errors in his complaint.” (Id. at 1.) 25 Plaintiff states that “in his original complaint [plaintiff] wrongly named R. Schneider and T. 26 Carter, [and] plaintiff asks to drop these defendants and add the correct defendants.” (Id.) 27 28 1 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.) 1 1 Plaintiff asserts that on January 19, 2015, pursuant to Rule 15(a), he asked for Defendants’ 2 consent prior to amending his complaint and “[t]hey appeared to agree under the above mention 3 (sic) reasons.” (Id.) 4 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the 5 party=s pleading once as a matter of course at any time before a responsive pleading is served. 6 Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written 7 consent of the adverse party, and leave shall be freely given when justice so requires. Id. Here, 8 because Defendants have filed an Answer to the complaint, Plaintiff requires leave of court to 9 file an amended complaint unless Defendants have given “written consent.” Plaintiff merely 10 claims that Defendants “appeared” to consent to amendment of the complaint. This is not 11 sufficient to satisfy Rule 15(a)’s requirement of “written consent.” Thus, Defendant shall be 12 required to file a written response to Plaintiff’s motion to amend within thirty days. 13 Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of service 14 of this order, Defendants shall file a written response to Plaintiff’s motion to amend, indicating 15 either (1) consent to the filing of the proposed amended complaint submitted by Plaintiff, or (2) 16 opposition to the motion to amend. 17 18 19 20 IT IS SO ORDERED. Dated: March 19, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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