Herrera v. Ahlin et al

Filing 13

ORDER GRANTING Plaintiff LEAVE TO AMEND the Complaint to Identify Doe Defendants, signed by Magistrate Judge Gary S. Austin on 5/20/2015. Sixty-Day Deadline to File a Second Amended Complaint as Instructed by This Order. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:14-cv-00164-LJO-GSA-PC

RUBEN HERRERA,

ORDER GRANTING PLAINTIFF LEAVE
TO AMEND THE COMPLAINT TO
IDENTIFY DOE DEFENDANTS
(Doc. 12.)

vs.
PAM AHLIN, et al.,

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SIXTY- DAY DEADLINE TO FILE A
SECOND AMENDED COMPLAINT AS
INSTRUCTED BY THIS ORDER

Defendants.

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I.

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BACKGROUND
Ruben Herrera (APlaintiff@) is a civil detainee proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. ' 1983.

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commencing this action on February 6, 2014. (Doc. 1.) On April 16, 2015, the court issued an

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order dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 9.) On

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May 14, 2015, Plaintiff filed the First Amended Complaint. (Doc. 11.)

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Plaintiff filed the Complaint

On May 14, 2015, Plaintiff filed a motion for an extension of time to amend the

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complaint, which the court construes as a motion for leave to amend. (Doc. 12.)

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II.

RULE 15(a) - LEAVE TO AMEND

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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 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 seeks to amend the complaint to identify Doe Defendants. The court finds no

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evidence of prejudice, bad faith, undue delay in the litigation, or futility in allowing Plaintiff to

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amend the complaint for this purpose. Therefore, Plaintiff shall be granted leave to file a

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Second Amended Complaint for this limited purpose.

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III.

CONCLUSION AND ORDER

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Plaintiff is granted leave to file a Second Amended Complaint within thirty days for the

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sole purpose of identifying Doe Defendants. Although Plaintiff has been given the opportunity

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to amend, it is not for the purpose of adding new allegations or claims.

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Plaintiff is reminded that an amended complaint supercedes the [prior] complaint,

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Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be

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complete in itself without reference to the prior or superceded pleading, Local Rule 220.

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Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged. The amended complaint should be

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clearly and boldly titled ASecond Amended Complaint,@ refer to the appropriate case number,

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and be an original signed under penalty of perjury.
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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff=s request to amend the complaint to identify Doe Defendants, filed on
May 14, 2015, is GRANTED;

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Plaintiff is GRANTED leave to file a Second Amended Complaint within sixty

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(60) days of the date of service of this order for limited purpose, as instructed by

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this order;

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3.

The Clerk=s Office shall send Plaintiff a civil rights complaint form;

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4.

Plaintiff shall caption the amended complaint ASecond Amended Complaint@

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and refer to the case number 1:14-cv-00164-LJO-GSA-PC;
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Plaintiff may not add any new claims or defendants to this action via his

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amended complaint and any attempt to do so will result in an order striking the

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amended complaint; and

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6.

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Plaintiff’s failure to comply with this order shall result in a recommendation that
this action be dismissed.

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IT IS SO ORDERED.
Dated:

May 20, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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