Perez v. Padilla

Filing 23

ORDER GRANTING Leave to Amend the Complaint; ORDER DIRECTING Clerk to File Second Amended Complaint Lodged on May26, 2016 22 ; ORDER DENYING Request for Entry of Default, signed by Magistrate Judge Erica P. Grosjean on 06/13/2016. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH PEREZ,

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Plaintiff,

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R. PADILLA,

ORDER GRANTING LEAVE TO
AMEND THE COMPLAINT

vs.

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1:14-cv-01730-EPG-PC

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Defendant.

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ORDER DENYING REQUEST FOR
ENTRY OF DEFAULT

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ORDER DIRECTING CLERK TO FILE
SECOND AMENDED COMPLAINT
LODGED ON MAY 26, 2016
(EPG No. 22.)

I.

BACKGROUND

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Joseph Perez (“Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in

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

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this action on November 6, 2014. (ECF No. 1.)

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On November 6, 2014, Plaintiff consented to Magistrate Judge jurisdiction in this action

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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (ECF No. 3.)

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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On February 5, 2015, the Court dismissed the Complaint for failure to state a claim,

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with leave to amend. (ECF No. 9.) On April 15, 2015, Plaintiff filed the First Amended
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Complaint, which awaits the Court‟s requisite screening. (ECF No. 12.) On May 26, 2016,

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Plaintiff lodged a proposed Second Amended Complaint. (ECF No. 22.)

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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. Here,

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because Plaintiff has already amended the complaint once, Plaintiff requires leave of Court to

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file a Second Amended Complaint.

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“Rule 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 “need 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 “„[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, 713 (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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The Court finds no bad faith or futility in Plaintiff‟s proposed amendment.

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proposed Second Amended Complaint arises from the same events at issue in the Complaint for

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this action and appears duplicative of the First Amended Complaint, with the addition of

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exhibits. Because the First Amended Complaint awaits the Court‟s requisite screening and has

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not been served, there will be no undue delay or prejudice to Defendants in allowing Plaintiff to

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proceed with the Second Amended Complaint. Therefore, Plaintiff shall be granted leave to

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amend, and the Second Amended Complaint shall be filed.

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III.

The

REQUEST FOR ENTRY OF DEFAULT

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Plaintiff has written on the front page of the Second Amended Complaint, “notice of

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entery [sic] request to enter default.” (ECF No. 22 at 1.) To the extent that Plaintiff brings a
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motion for entry of default against any of the defendants, such motion is denied. As the Court

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advised Plaintiff it its order of September 9, 2015, it not time for service in this case, and there

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is no evidence that any of the defendants have been properly served. (ECF No. 16.) Therefore,

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default may not be entered against any of the defendants under Rule 55(a) of the Federal Rules

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of Civil Procedure at this stage of the proceedings.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff is GRANTED leave to amend the complaint;

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The Clerk is directed to FILE the proposed Second Amended Complaint which

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was lodged on May 26, 2016;

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The Second Amended Complaint shall be screened in due course; and

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To the extent that Plaintiff has brought a request for default against any of the

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defendants, the request is DENIED.

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IT IS SO ORDERED.
Dated:

June 13, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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