Franks v. Kelso et al

Filing 74

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/31/2020 DENYING 71 Motion for Leave to File and Amended Complaint and STRIKING 72 Amended Complaint. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TOM M. FRANKS,

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No. 2:17-cv-1056 KJM CKD P

Plaintiff,

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v.

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ORDER

J. CLARK KELSO, et al.,

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Defendants.

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Plaintiff is a California prisoner proceeding se. On March 27, 2020, plaintiff filed a

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motion for leave to amend and a proposed amended complaint. In the amended complaint

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plaintiff requests to add defendant Steven Paul who was screened out when plaintiff’s original

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complaint was screened in 2017.1 Plaintiff does not add anything material to the claim against

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defendant Paul and does not explain his two-and-a-half-year delay in seeking leave to amend.

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See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (among other things, the court

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considers futility of amendment and undue delay in considering whether to grant leave to amend).

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Further, the amended complaint is an incomplete supplemental pleading which is not permitted

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under Local Rule 220.

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The undersigned issued Findings and Recommendations on October 18, 2017, screening out a
claim and several defendants including Steven Paul. (ECF No. 7). Plaintiff failed to file any
objections to the Findings and Recommendations and the district judge assigned to the case at that
time adopted them in full on November 14, 2017 (ECF No. 13).
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Plaintiff’s motion for leave to amend will be denied and the proposed amended complaint

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stricken. Plaintiff is warned that the court views plaintiff’s motion as frivolous especially at this

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stage in plaintiff’s case.2 If plaintiff files other frivolous motions, or motions made in bad faith,

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sanctions, including dismissal of this action, may issue.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to file an amended complaint (ECF No. 71) is denied; and

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2. Plaintiff’s amended complaint (ECF No. 72) is stricken.

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Dated: March 31, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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fran1056.mta

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The defendants have already filed a motion for summary judgment (ECF No. 50), and Findings
and Recommendations partially granting and partially denying their motion is pending. (ECF No.
64).
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