Lipsey v. Hand-Ronga, et al.

Filing 31

ORDER VACATING 28 FINDINGS AND RECOMMENDATIONS Entered on August 7, 2019; ORDER GRANTING Plaintiff LEAVE to AMEND and DIRECTING Clerk to FILE Fourth Amended Complaint Lodged on August 26, 2019 signed by Magistrate Judge Gary S. Austin on 9/16/2019. (Sant Agata, S)

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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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vs.

1:17-cv-01704-LJO-GSA-PC
ORDER VACATING FINDINGS AND
RECOMMENDATIONS ENTERED ON
AUGUST 7, 2019
(ECF No. 28.)

N. HAND-RONGA, et al.,

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Defendants.

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ORDER GRANTING PLAINTIFF LEAVE
TO AMEND AND DIRECTING CLERK
TO FILE FOURTH AMENDED
COMPLAINT LODGED ON AUGUST 26,
2019
(ECF No. 30.)

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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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the First Amended Complaint as a matter of course. (ECF No. 12.)

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On September 24, 2018, the court dismissed the First Amended Complaint for failure to

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state a claim, with leave to amend. (ECF No. 15.) On December 3, 2018, Plaintiff filed the

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Second Amended Complaint. (ECF No. 18.) On February 7, 2019, Plaintiff lodged a proposed

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Third Amended Complaint which the court construed as a request for leave to amend. (ECF No.

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21.) On February 13, 2019, the court granted Plaintiff leave to amend and the Third Amended

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Complaint was filed previously on February 12, 2019. (ECF Nos. 22, 23.)

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On August 7, 2019, the court screened the Third Amended Complaint and entered

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findings and recommendations, recommending that this case be dismissed for Plaintiff’s failure

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to state a claim. (ECF No. 28.) On August 26, 2019, Plaintiff filed objections to the findings

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and recommendations and lodged a proposed Fourth Amended Complaint, which the court

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construes as a request for leave to amend. (ECF Nos. 29, 30.)
Plaintiff’s request for leave to amend the complaint is now before the court. 28 U.S.C.

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1915A.
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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 Fourth 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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Fourth Amended Complaint arises from the same events at issue in the Third Amended

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Complaint for this action, but it appears that Plaintiff has added more factual allegations.
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Allowing Plaintiff to file the Fourth Amended Complaint at this stage of the proceedings will not

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cause undue delay or prejudice to Defendants.

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amend, and the Fourth Amended Complaint shall be filed.

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Therefore, Plaintiff shall be granted leave to

In light of this ruling, the court shall vacate its findings and recommendations entered on

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August 7, 2019. The Fourth Amended Complaint shall be screened in due course.

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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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The Clerk is directed to file the proposed Fourth Amended Complaint, which was

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lodged on August 26, 2019 (ECF No. 30);

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The findings and recommendations entered on August 7, 2019, are vacated; and

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The Fourth Amended Complaint shall be screened in due course.

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IT IS SO ORDERED.
Dated:

September 16, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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