Govea v. Fox et al.

Filing 51

ORDER signed by Magistrate Judge Deborah Barnes on 08/19/19 DENYING 46 Request to Amend the Complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE R. GOVEA,

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Plaintiff,

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No. 2:15-cv-2545 MCE DB P

v.

ORDER

ROBERT W. FOX, et al.,

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Defendants.

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Plaintiff is a state prisoner formerly proceeding pro se with a civil rights action under 42

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U.S.C. § 1983. This action proceeds on plaintiff’s second amended complaint. (ECF No. 18.)

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Plaintiff claims defendants failed to provide him with adequate medical treatment in violation of

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the Eighth Amendment. Presently before the court is plaintiff’s request for leave to file an

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amended complaint (ECF No. 46) and defendants’ oppositions (ECF Nos. 47, 50). For the

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reasons set forth below, the court will deny the request without prejudice.

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On August 1, 2019, a notice was filed indicating that counsel agreed to represent plaintiff in

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this action. (ECF No. 46.) Additionally, counsel for plaintiff requested leave to file an amended

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complaint. The request did not contain a proposed amended complaint or indicate the reason for

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amendment. Defendants Bick, Fox, Lewis, and Rading filed an opposition to plaintiff’s request

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for leave to file an amended complaint. (ECF No. 47.) Defendant Wolfson is separately

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represented and has also filed an opposition to plaintiff’s request to amend. (ECF No. 50.)

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Defendant Clark has not yet been served in this action.1

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Pursuant to Federal Rule of Civil Procedure 15, a plaintiff may amend his complaint once as

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a matter of course within twenty-one days after serving it or twenty-one days after service of a

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responsive pleading or motion pursuant to Rule 12(b). In all other cases, a plaintiff may amend

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his complaint with defendant’s written consent or the court’s leave. Fed. R. Civ. P. 15. “Rule

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15(a) is very liberal and leave to amend shall be freely given when justice so requires.”

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AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quotation

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omitted); see also Fed. R. Civ. P. 15(a) (“The court should freely give leave when justice so

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requires.”). However, courts “need not grant leave to amend where the amendment: (1)

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

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litigation; or (4) is futile.” Id. The “court’s discretion to deny leave to amend is particularly

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broad where the court has already given the plaintiff an opportunity to amend his complaint.”

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Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th

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Cir. 1986).

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Defendants argue that under Federal Rule of Civil Procedure 15(a), plaintiff is required to

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obtain permission before filing an amended complaint because more than twenty-one days have

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passed since defendants were served. (ECF No. 47 at 2-3; ECF No. 50 at 2-3.) Defendants have

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also argued that plaintiff’s request fails to comply with Local Rule 137(c), which requires him to

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file a copy of the proposed amended complaint attached as an exhibit to any motion to amend.

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(ECF No. 47 at 4; ECF No. 50 at 4.) Defendants further stated that plaintiff has not indicated

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why justice requires amendment or whether he intends to seek different forms of relief, allege

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new or different facts, add defendants, or raise new causes of action. (ECF No. 47 at 4; ECF No.

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50 at 4.)

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By order dated June 24, 2019, the court granted plaintiff an additional 30 days to submit the
documents to effect service on defendant Clark. (ECF No. 35.)
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Because plaintiff has failed to comply with Federal Rule of Civil Procedure 15(a) and Local

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Rule 137(c) the court will deny plaintiff’s request without prejudice to its renewal. However, any

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motion to amend should comply with the Federal Rules of Civil Procedure and the local rules.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to amend the complaint

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(ECF No. 46) is denied without prejudice.

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Dated: August 19, 2019

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DLB:12
DLB:1/Orders/prisoner-civil rights/gove2545.Am’d.Appr

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