Castle v. Chen

Filing 36

ORDER Denying Plaintiff's 33 Motion to Exceed Page Limit, and Striking Lodged Second Amended Complaint signed by Magistrate Judge Michael J. Seng on 02/12/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SY LEE CASTLE,
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Plaintiff,
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v.
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Case No. 1:12-cv-00326-LJO-MJS
ORDER (1) DENYING PLAINTIFF’S
MOTION TO EXCEED PAGE LIMIT, and
(2) STRIKING LODGED SECOND
AMENDED COMPLAINT

C. CHEN,
(ECF Nos. 32, 33)

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Defendant.
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Plaintiff Sy Lee Castle is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. This matter proceeds against

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Defendant Chen on claims of inadequate medical care and retaliation. The case is in the

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discovery phase. The deadline to amend pleadings is April 1, 2014.

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Before the Court is Plaintiff’s Motion to Exceed Page Limit to Add a Defendant in the

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lodged Second Amended Complaint. (ECF Nos. 32, 33.) Defendant has not filed opposition

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to the Motion, and the time for doing so has passed. Local Rule 230(l).

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The Court construes this Motion as also seeking leave to file the concurrently lodged

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Second Amended Complaint. So construed, the Motion shall be denied without prejudice to

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Plaintiff seeking appropriate relief in the manner described below.

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A party may amend his pleading where, as here, a responsive pleading has been
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filed, only upon written consent of the adverse party or leave of the Court. Fed. R. Civ. P.

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15(a). Such leave to amend shall be freely given when justice so requires. Amerisource

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Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006), quoting Fed. R. Civ.

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P. 15(a).

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“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).

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Once a responsive pleading has been served, a motion to add a new party is within
the discretion of court. Boyd v. District of Columbia, 465 F.Supp.2d 1, 3 (D.D.C. 2006).
Here, Plaintiff lodged the Second Amended Complaint without consent of Defendant
or the Court. The Second Amended Complaint is unauthorized and shall be stricken.
Plaintiff’s instant filing is not a proper motion to amend. The Motion does not state

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any grounds in support of the relief sought. Fed. R. Civ. P. 7(b)(1); see Confederate

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Memorial Ass’n, Inc., v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) (request to amend must

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indicate particular grounds on which amendment is sought). Moreover, the Motion on its

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face does not clearly give notice of the nature and extent of relief sought.

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If Plaintiff wishes to file an amended pleading, he may move the Court for

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permission to do so. He must file a proper motion and set forth grounds in support, that is,

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the reasons why he seeks relief and why he believes he is entitled to it. Plaintiff should

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state in the motion what changes he purports to make by way of the new pleading, why

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they are important to Plaintiff’s case, when Plaintiff learned of the need to amend, and

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whether or not the proposed changes will prejudice the Defendant(s).

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Accordingly, and for the reasons, it is HEREBY ORDERED that:
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is DENIED without prejudice, and

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Plaintiff’s Motion to Exceed Page Limit to Add a new Defendant (ECF No.33)

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The lodged Second Amended Complaint (ECF No. 32) shall be STRICKEN
from the record.

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IT IS SO ORDERED.
Dated:

February 12, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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