Haraszewski v. Knipp

Filing 22

ORDER signed by Magistrate Judge Allison Claire on 6/3/2016 GRANTING plaintiff's 20 request to amend; and plaintiff shall file a second amended complaint within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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H. DYMITRI HARASZEWSKI,

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No. 2:13-cv-2494 AC (TEMP) P

Plaintiff,
v.

ORDER

KNIPP, et al.,
Defendants.

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Plaintiff is proceeding pro se and in forma pauperis pursuant to 28 U.S.C. § 1915. By

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order filed December 16, 2015, the court screened plaintiff’s first amended complaint; found

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service appropriate for defendants Casagrande, Garcia and Reese on a First Amendment

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retaliation claim; and directed plaintiff to file documents necessary to effectuate service. Plaintiff

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was also informed of his right to file a second amended complaint. Plaintiff now moves to file an

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amended pleading. (ECF No. 20.)

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Pursuant to Federal Rule of Civil Procedure 15(a)(2), courts should “freely give leave

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when justice so requires,” and the Ninth Circuit has noted that the policy is one “to be applied

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with extreme liberality,” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th

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Cir. 1990). In exercising its discretion to permit or deny a party to amend its pleading, this court

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considers five factors: (1) whether the amendment was filed with undue delay; (2) whether the

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movant has requested the amendment in bad faith or as a dilatory tactic; (3) whether the movant

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was allowed to make previous amendments which failed to correct deficiencies of the complaint;

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(4) whether the amendment will unduly prejudice the opposing party; and (5) whether the

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amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962).

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Here, plaintiff moves to amend his pleading so that he can better allege facts sufficient to

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state a First Amendment mail tampering claim. Though plaintiff has previously been granted

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leave to amend, nothing in the record supports the conclusion that plaintiff acted in bad faith in

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filing the instant motion. Nor does it appear that amendment will necessarily be futile. Finally,

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the court finds no prejudice to the defendants, since service has not yet been ordered on them.

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Plaintiff’s motion will therefore be granted.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to amend (ECF No. 20) is granted; and

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2. Plaintiff shall file a second amended complaint within thirty days from the date of this

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order.
DATED: June 3, 2016

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