Bowell v. Montoya et al
Filing
60
ORDER ADDRESSING Plaintiff's 58 Supplement filed on December 2, 2019, signed by Magistrate Judge Gary S. Austin on 1/27/2020. (Orozco, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
JAMES BOWELL,
Plaintiff,
12
vs.
13
14
F. MONTOYA, et al.,
1:17-cv-00605-LJO-GSA-PC
ORDER ADDRESSSING PLAINTIFF’S
SUPPLEMENT FILED ON DECEMBER 2,
2019
(ECF No. 58.)
Defendants.
15
16
17
18
I.
BACKGROUND
19
James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
20
with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s
21
First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for
22
violation of due process under the Fourteenth Amendment, and against defendants Killmer and
23
Lopez for conspiracy to place Plaintiff at risk of serious harm and failure to protect Plaintiff under
24
the Eighth Amendment. (ECF No. 16.)1
25
On November 7, 2019, defendants Montoya, Carter, Killmer and Lopez filed an Answer
26
to the First Amended Complaint. (ECF No. 54.) On November 18, 2019, Plaintiff filed a
27
28
1
On October 25, 2018, the court issued an order dismissing all other claims and defendants from
this case for Plaintiff’s failure to state a claim. (ECF No. 20.)
1
1
response to the Answer. (ECF No. 56.) On December 2, 2019, Plaintiff filed a supplemental
2
response to the Answer which Plaintiff titled “Supplement to Answer 11/14/19; Exhaustion
3
Verification; Supporting Case Law Directly on Point; Amending Complaint Adding CDCR as
4
Defendants; Corporate Liability” (hereinafter, “Supplement”). (ECF No. 58.)
5
6
II.
LOCAL RULE 220 AND FEDERAL RULE OF CIVIL PROCEDURE 15(a) AMENDING THE COMPLAINT
7
Local Rule 220 provides, in part:
8
11
Unless prior approval to the contrary is obtained from the Court, every
pleading to which an amendment or supplement is permitted as a matter of right
or has been allowed by court order shall be retyped and filed so that it is complete
in itself without reference to the prior or superseded pleading. No pleading shall
be deemed amended or supplemented until this Rule has been complied with. All
changed pleadings shall contain copies of all exhibits referred to in the changed
pleading.
12
In Plaintiff’s Supplement, he discusses amending the complaint to add the State and
13
CDCR as defendants. (Id. at 2-3.) Plaintiff may not add defendants in this manner. Local Rule
14
220. Under Rule 220, Plaintiff may not add defendants to the First Amended Complaint by
15
submitting a Supplement separately from the First Amended Complaint. To add information or
16
make a correction to the First Amended Complaint, Plaintiff must file a Second Amended
17
Complaint which is complete in itself without reference to prior complaints.
9
10
18
At this stage of the proceedings Plaintiff may amend the complaint only with the
19
Defendants’ written consent or the court’s leave. “Rule 15(a) is very liberal and leave to amend
20
‘shall be freely given when justice so requires.’” AmerisourceBergen Corp. v. Dialysis West,
21
Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need
22
not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought
23
in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” Id. The factor of
24
“‘[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend.’” Owens v.
25
Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712, 713 (9th Cir. 2001) (quoting Bowles v.
26
Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)).
27
If Plaintiff wishes to amend the complaint he must file a motion to amend discussing the
28
changes or additions he wishes to make. Plaintiff must also, concurrently with the motion to
2
1
amend, submit a separate proposed Second Amended Complaint for the court’s review. The
2
proposed Second Amended Complaint is limited to twenty-five pages, including exhibits.
3
III.
CONCLUSION
4
Based on the foregoing, it is HEREBY ORDERED that:
5
1.
Plaintiff’s Supplement, filed on December 2, 2019, is not sufficient to add
6
defendants or claims to the First Amended Complaint, pursuant to Local Rule
7
220; and
8
2.
9
If Plaintiff wishes to amend the First Amended Complaint he must file a motion
to amend, and submit concurrently therewith, a separate proposed Second
10
Amended Complaint complete in itself, not exceeding twenty-five (25) pages.
11
12
13
14
15
IT IS SO ORDERED.
Dated:
January 27, 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?