Gray v. Virga, et al.

Filing 41

ORDER signed by Magistrate Judge Allison Claire on 4/2/14 ORDERING that plaintiffs motion to amend (ECF No. 38 ) is denied without prejudice; and Plaintiff's motion for default judgment (ECF No. 39 ) is denied.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNARDOS GRAY, JR.,

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Plaintiff,

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v.

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No. 2:12-cv-3006 KJM AC P

T. VIRGA, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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pursuant to 42 U.S.C. § 1983. Currently pending before the court are plaintiff’s motion to amend

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his pending complaint, ECF No. 38, and his motion for default judgment, ECF No. 39. The court

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will address each motion in turn.

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I.

Motion to Amend

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In a one page motion, plaintiff seeks to amend his original complaint to include a

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Fourteenth Amendment equal protection claim against Defendants Virga, Nielson, Starnes, and

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Gam. ECF No. 38 at 1. However, plaintiff failed to submit a proposed first amended complaint

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along with this motion. See Local Rule 137(c).

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A plaintiff may amend the complaint once as a matter of course within twenty-one days

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after serving it or within twenty-one days after service of an answer or motion under Rule 12(b),

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(e), or (f), whichever is earlier. See Fed.R.Civ.P. 15(a)(1). When a party may no longer amend a
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pleading as a matter of right under Rule 15(a)(1), the party must either petition the court for leave

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to amend or obtain consent from the adverse parties. Fed. R. Civ. P. 15(a)(2); Keniston v.

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Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983).

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In the instant case, plaintiff must seek leave of court to amend since defendants were

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served more than twenty-one days ago and have not consented to the proposed amendment. See

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Fed. R. Civ. P. 15(a). However, plaintiff’s motion to amend is deficient because he neglected to

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submit a proposed first amended complaint. “If filing a document requires leave of court, such as

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an amended complaint after the time to amend as a matter of course has expired, counsel shall

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attach the document proposed to be filed as an exhibit to moving papers seeking such leave and

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lodge a proposed order as required by these Rules.” Local Rule 137(c). While plaintiff is

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proceeding pro se, he is still required to comply with the Local Rules. It does not suffice to

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simply describe how plaintiff intends to amend his complaint. Therefore, plaintiff’s motion to

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amend will be denied without prejudice.

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II.

Motion for Default Judgment

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In this motion plaintiff requests that default judgment be entered because no answer or

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other defense has been filed by defendants. However, a review of the court’s docket indicates

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that on March 31, 2014, Judge Kimberley Mueller adopted the undersigned’s Findings and

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Recommendations in full and ordered Defendants Virga, Nielson, Starnes and Gam to file an

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answer within thirty days. As the time to answer has not expired, defendants are not in default

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and plaintiff’s motion should therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend (ECF No. 38) is denied without prejudice; and,

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2. Plaintiff motion for default judgment (ECF No. 39) is denied.

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DATED: April 2, 2014

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