Estrada v. Tassey et al

Filing 57

ORDER DENYING WITHOUT PREJUDICE 50 Motion to Amend the Complaint, signed by Magistrate Judge Dennis L. Beck on 12/30/2013. (Martin-Gill, S)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

DAVID ESTRADA,

12
13
14
15

Plaintiff,
vs.
GIPSON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:13cv00919 LJO DLB PC
ORDER DENYING PLAINTIFF’S
MOTION TO AMEND
(Document 50)

16
17

Plaintiff David Estrada (“Plaintiff”) is a state prisoner proceeding pro se and in forma

18

pauperis in this this civil action. Plaintiff filed this action on June 17, 2013. On August 8, 2013,

19

Plaintiff filed a First Amended Complaint (“FAC”). This action is proceeding on the following

20
21
22

claims: (1) retaliation in violation of the First Amendment against Defendants Gipson and
Espinosa; and (2) violation of the Eighth Amendment against Defendants Gipson, Espinosa,
Lambert and Cavazos.

23

Plaintiff returned service documents and the Court directed the United States Marshall to
24
25

serve Defendants Gipson, Espinosa, Lambert and Cavazos on October 11, 2013.

26
27
28
1

1
2

On December 23, 2013, Plaintiff filed a document entitled, “Changed Pleading.”1 Based
on the rules cited by Plaintiff, the Court construes this as a Motion to Amend.

3
4
5

“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so
requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)
(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the

6
7
8
9

amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue
delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is
insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan,

10

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

11

Cir. 1999)).

12

This Court has already screened Plaintiff’s FAC and ordered service. In fact, at least

13

three Defendants have been served and have requested an extension of time to respond to the

14

FAC. Therefore, at this stage of the proceeding, Plaintiff cannot amend as a matter of course

15

pursuant to Federal Rule of Civil Procedure 15(a).

16
17
18

The Court also declines to permit an amendment at this juncture. At least three
Defendants have been served and are preparing a response to the FAC. Allowing an amendment
at this time would create undue delay and would prejudice Defendants.

19

Accordingly, Plaintiff’s motion is DENIED WITHOUT PREJUDICE. Once Defendants

20
21
22
23

have filed a response and can oppose a motion to amend, Plaintiff may move to amend again if
he so chooses.
IT IS SO ORDERED.

24

Dated:

25

28

/s/ Dennis

L. Beck

UNITED STATES MAGISTRATE JUDGE

26
27

December 30, 2013

DEAC_Signature-END:

1

Plaintiff filed two documents on December 23, 2013. In addition to the instant filing, Plaintiff filed another
document also entitled “Changed Pleading.” ECF No. 49. The Court disregarded this document because it was
unclear what relief Plaintiff was seeking.
2