Lipsey v. Hand-Ronga, et al.

Filing 22

ORDER GRANTING Leave to Amend the Complaint; ORDER DIRECTING Clerk to File Third Amended Complaint Lodged on February 7, 2019, signed by Magistrate Judge Gary S. Austin on 2/12/19. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY, JR.,

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Plaintiff,

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1:17-cv-01704-LJO-GSA-PC
ORDER GRANTING LEAVE TO AMEND
THE COMPLAINT

vs.
N. HAND-RONGA, et al.,

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Defendants.

ORDER DIRECTING CLERK TO FILE
THIRD AMENDED COMPLAINT LODGED
ON FEBRUARY 7, 2019
(ECF No. 21.)

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I.

BACKGROUND

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Christopher Lipsey, Jr. (“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. Plaintiff filed the Complaint

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commencing this action on December 19, 2017. (ECF No. 1.) On April 9, 2018, Plaintiff filed

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a First Amended Complaint as a matter of course. (ECF No. 12.) On September 24, 2018, the

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court issued a screening order dismissing the First Amended Complaint for failure to state a

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claim, with leave to file a Second Amended Complaint within thirty days. (ECF No. 15.) On

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December 3, 2018, Plaintiff filed a Second Amended Complaint. (ECF No. 18.)
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On February 7, 2019, Plaintiff lodged a proposed Third Amended Complaint. (ECF No.

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21.) The court construes Plaintiff’s lodged complaint as a request for leave to amend.

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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 party’s

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pleading once as a matter of course at any time before a responsive pleading is served. Fed. R.

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Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written consent of

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the adverse party, and leave shall be freely given when justice so requires. Id. Here, because

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Plaintiff has already amended the complaint more than once and no other parties have appeared,

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Plaintiff requires leave of court to file a Third 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. 2006)

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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue

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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. The proposed

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Third Amended Complaint arises from the same events at issue in the original Complaint for this

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action. Because the Second 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 Third Amended Complaint. Therefore, Plaintiff shall be granted leave to

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amend, and the Third 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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Plaintiff is granted leave to amend the complaint;

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2.

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The Clerk is directed to file the proposed Third Amended Complaint, which was
lodged on February 7, 2019; and

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The Third Amended Complaint shall be screened in due time.

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IT IS SO ORDERED.
Dated:

February 12, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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