Larson v. McDonald

Filing 29

ORDER signed by Senior Judge Howard D. McKibben on 1/7/09 ADOPTING 25 FINDINGS and RECOMMENDATIONS, and DISMISSING this action with prejudice. (Kastilahn, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court has before it the findings and recommendations of the magistrate judge dated July 22, 2008 (#25), in which the magistrate judge recommends this action be dismissed with prejudice because the second amended complaint does not state a colorable claim for relief. For the reasons discussed below, this court HARVEY EUGENE LARSON, ) ) Plaintiff, ) ) vs. ) ) MCDONALD, et al., ) ) Defendants. ) _________________________________ ) 2:07-cv-01955-HDM-RAM ORDER UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

adopts in part and modifies in part the magistrate judge's recommendation. Plaintiff filed his original complaint in this action on September 19, 2007. On December 10, 2007, the magistrate judge 1

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dismissed the complaint and granted plaintiff leave to file an amended complaint. 30, 2008. Plaintiff filed his amended complaint on April

On May 27, 2008, the magistrate judge dismissed the

complaint and granted plaintiff leave to file a second amended complaint. The plaintiff filed his second amended complaint on On July 22, 2008, the magistrate judge recommended On August 15, 2008,

June 20, 2008.

dismissing the second amended complaint.

instead of filing objections to the magistrate judge's recommendations and without securing leave of court, the plaintiff filed a third amended complaint in which he expands on his original complaint and alleges for the first time that he is a drug addict who requires a drug treatment program and that defendants have transferred him to a facility that does not have any such program. The record reflects that none of the defendants have been served in this action. To the extent that what is denoted as plaintiff's third amended complaint is in fact an attempt by plaintiff to file an amended complaint, the complaint is stricken for having been filed without leave of court. "A party may amend its pleading once as a

matter of course . . . before a responsive pleading is served." Fed. R. Civ. P. 15(a) (emphasis added). To amend a complaint after

that, the plaintiff must secure leave of court or the written consent of the adverse party. Ascon Properties, Inc. v. Mobil Oil

Co., 866 F.2d 1149, 1160 (9th Cir. 1989). To the extent plaintiff has moved to amend his complaint, the motion is denied. While leave to amend should be "freely give[n] .

. . when justice so requires," Fed. R. Civ. P. 15(a), the court need not grant leave where it "would cause the opposing party undue 2

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prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay." Id. (citing DCD Programs, Ltd. Further, the

v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)).

court has particularly broad discretion to deny leave to amend where the plaintiff has previously amended the complaint. Id.

Plaintiff has already twice amended his complaint, and none of his earlier complaints raised his status as a drug addict or his being transferred to a facility that does not have a drug treatment program. Plaintiff's failure to raise or even suggest the claim

for nearly a year after filing his original complaint constitutes undue delay. In striking the third amended complaint as having been filed without securing leave of court and denying the motion to amend, the court expresses no opinion with respect to the viability of any additional claims the plaintiff may have set forth in his third amended complaint. Accordingly, the court adopts the recommendations of the magistrate judge and dismisses this action with prejudice. IT IS SO ORDERED. DATED: This 7th day of January, 2009.

____________________________ UNITED STATES DISTRICT JUDGE

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