Brown v. United States of America, et al.

Filing 24

ORDER GRANTING 22 Motion for Leave to Amend Complaint, signed by Magistrate Judge Gary S. Austin on 8/16/2013. Thirty Day Deadline to File Third Amended Complaint. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH A. BROWN,

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Plaintiff,

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vs.
UNITED STATES OF AMERICA, et al.,

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Defendants.

1:12-cv-00165-AWI-GSA-PC
ORDER GRANTING MOTION FOR
LEAVE TO AMEND COMPLAINT
(Doc. 22.)
THIRTY DAY DEADLINE TO FILE
THIRD AMENDED COMPLAINT

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I.

BACKGROUND

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Joseph A. Brown ("Plaintiff") is a federal prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388

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(1971). Plaintiff filed the Complaint commencing this action on February 6, 2012. (Doc. 1.)

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On April 4, 2012, Plaintiff filed the First Amended Complaint. (Doc. 7.) On April 16, 2012,

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May 17, 2012, August 23, 2012, August 30, 2012, and November 2, 2012, Plaintiff filed

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motions for leave to amend the complaint and to file a supplemental complaint. (Docs. 9, 10,

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11, 15, 16, 19.) On January 8, 2013, the court entered an order granting Plaintiff’s motion to

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amend and denying Plaintiff’s motion to file a supplemental complaint.

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February 8, 2013, Plaintiff filed the Second Amended Complaint. (Doc. 21.) On August 9,

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2013, Plaintiff filed a motion for leave to amend the complaint. (Doc. 22.)

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(Doc. 20.)

On

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II.

LEAVE TO AMEND – RULE 15

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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 Plaintiff has already amended the complaint twice, Plaintiff's requires leave of court to

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file a Third Amended Complaint.

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ARule 15(a) is very liberal and leave to amend >shall be freely given when justice so

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requires.=@ AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir.

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2006) (quoting Fed. R. Civ. P. 15(a)). However, courts Aneed not grant leave to amend where

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the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an

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undue delay in the litigation; or (4) is futile.@ Id. The factor of A>[u]ndue delay by itself . . . is

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insufficient to justify denying a motion to amend.=@ Owens v. Kaiser Foundation Health Plan,

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Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58

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(9th Cir. 1999)).

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Discussion

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Plaintiff's case has been pending since February 6, 2012. The delay in litigation will be

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further extended if Plaintiff is granted leave to amend. However, given that the complaint has

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not been served, and no other party has appeared in the action, amending the complaint will not

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prejudice the opposing party. Plaintiff seeks to file a Third Amended Complaint to add parties

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and a new legal claim. The Court finds no evidence of bad faith or futility. Therefore, in the

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interest of justice, Plaintiff's motion for leave to amend the complaint shall be granted.

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Plaintiff should note that although he has been given the opportunity to amend, it is not

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for the purposes of adding new defendants relating to issues arising after February 6, 2012. In

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addition, Plaintiff should take care to include only those claims that have been exhausted prior

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to the initiation of this suit on February 6, 2012. Moreover, Plaintiff may not change the nature

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of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007) (no“buckshot” complaints). Finally, Plaintiff is reminded that
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Local Rule 220 requires that an amended complaint be complete in itself without reference to

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any prior pleading.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff's motion to amend the complaint, filed on August 9, 2013, is
GRANTED;

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2.

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Within thirty days from the date of service of this order, Plaintiff shall file a
Third Amended Complaint as instructed by this order;

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3.

The Third Amended Complaint should be boldly titled “Third Amended
Complaint,” refer to case number 1:12-cv-00165-AWI-GSA-PC and be an

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original signed under penalty of perjury; and

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4.

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Plaintiff=s failure to comply with this order shall result in a recommendation that
this action be dismissed for failure to obey a court order.

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IT IS SO ORDERED.
Dated:

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August 16, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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