Matthew V. Salinas v. Pogue et al

Filing 28

ORDER GRANTING Plaintiff's 26 Motion for Leave to Amend the Complaint; ORDER for Clerk to File Second Amended Complaint Lodged on January 30, 2017, signed by Magistrate Judge Gary S. Austin on 2/22/2017. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW V. SALINAS,

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Plaintiff,

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vs.

1:16-cv-00520-GSA-PC
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND THE
COMPLAINT
(ECF No. 26.)

KENNETH J. POGUE, et al.,

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Defendants.

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ORDER FOR CLERK TO FILE SECOND
AMENDED COMPLAINT LODGED ON
JANUARY 30, 2017
(ECF No. 27.)

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I.

BACKGROUND

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Matthew V. Salinas (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 14, 2016, Plaintiff

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filed the Complaint commencing this action. (ECF No. 1.) On November 17, 2016, the First

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Amended Complaint was filed pursuant to Plaintiff’s motion for leave to amend. (ECF No.

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25.) On January 23, 2017, Plaintiff filed a motion to file a Second Amended Complaint. (ECF

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No. 26.) On January 30, 2017, Plaintiff lodged a proposed Second Amended Complaint. (ECF

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No. 27.

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Plaintiff’s motion to file a Second Amended Complaint is now before the court.
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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 and no other party has appeared in this

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case, Plaintiff requires leave of court to 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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Plaintiff seeks to amend the complaint to add a Doe Defendant that he has identified

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and wishes to add the Defendant and the allegations against the Defendant. The court finds no

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bad faith or futility in Plaintiff’s proposed amendment. Because the First Amended Complaint

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awaits the court’s requisite screening and has not been served, there will be no undue delay or

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prejudice to Defendants in allowing Plaintiff to proceed with the Second Amended Complaint.

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Therefore, Plaintiff’s motion to amend the complaint shall be granted, and the Second

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Amended Complaint shall be filed.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion to file a Second Amended Complaint, filed on January 23,
2017, is GRANTED;

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2.

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The Clerk is directed to file the proposed Second Amended Complaint which
was lodged on January 30, 2017; and

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The Second Amended Complaint shall be screened in due course.

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IT IS SO ORDERED.
Dated:

February 22, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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