Kevin P. O'Connell v. Chen

Filing 20

ORDER RESPONDING to Plaintiff's 19 Notice; ORDER DEEMING 17 Second Amended Complaint Properly Filed signed by Magistrate Judge Gary S. Austin on 12/5/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN P. O’CONNELL,

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1:12-cv-01403-GSA-PC
ORDER RESPONDING TO PLAINTIFF’S
NOTICE
(Doc. 19.)

Plaintiff,

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vs.

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DR. C. CHEN,

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ORDER DEEMING SECOND AMENDED
COMPLAINT PROPERLY FILED
(Doc. 17.)

Defendant.

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I.

BACKGROUND

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Kevin P. O’Connell ("Plaintiff") is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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August 27, 2012. (Doc. 1.) Plaintiff has consented to the jurisdiction of a Magistrate Judge,

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and no other parties have made an appearance in this case. (Doc. 3.)

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The court screened the Complaint under 28 U.S.C. § 1915A and entered an order on

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May 14, 2013, dismissing the Complaint for failure to state a claim, with leave to amend.

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(Doc. 10.) On June 3, 2013, Plaintiff filed a “Request for Time Extension” which the court

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construed as a motion for stay of this action. (Doc. 11.) On June 6, 2013, the court denied

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Plaintiff’s motion for stay and granted him an extension of time to file an amended complaint.

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(Doc. 12.) On July 8, 2013, Plaintiff filed the First Amended Complaint. (Doc. 14.)

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On November 18, 2013, the court’s orders of May 14, 2013 and June 6, 2013 were

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returned by the U.S. Postal Service as undeliverable, and on November 18, 2013, the court re-

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served the court’s May 14, 2013 order upon Plaintiff at his new address. (Court Record.)
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On December 2, 2013, Plaintiff notified the court that he had received the court’s May

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14, 2013 order which dismissed the complaint with leave to amend. (Doc. 19.) On December

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4, 2013, Plaintiff filed the Second Amended Complaint. (Doc. 17.)

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II.

LEAVE TO AMEND – RULE 15(a)

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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.

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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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Here, because Plaintiff already filed the First Amended Complaint on July 8, 2013,

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Plaintiff requires leave of court to file a Second Amended Complaint. It appears clear from

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Plaintiff’s notice of December 2, 2013, that he was preparing to respond to the court’s May 14,

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2013 order and therefore believed that he had leave to amend the complaint again. The court

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finds no evidence of bad faith, undue delay, futility, or prejudice to defendants in granting leave

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to amend and deeming the Second Amended Complaint properly filed. Plaintiff is advised that

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an amended complaint supercedes the prior complaint, and therefore Plaintiff’s Second

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Amended Complaint supercedes his First Amended Complaint. Lacey v. Maricopa County,

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693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc).

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III.

CONCLUSION

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Based on the foregoing, and in the interest of justice, it is HEREBY ORDERED that:

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1.

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Plaintiff’s Second Amended Complaint, filed on December 4, 2013, is deemed
properly filed; and

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2.

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This action now proceeds with the Second Amended Complaint, which shall be
screened by the court in due time.

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IT IS SO ORDERED.
Dated:

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December 5, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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