Franklin v. Bisantz et al

Filing 16

ORDER signed by Magistrate Judge Deborah Barnes on 12/26/2017 GRANTING 12 Motion to Amend the Complaint. Plaintiff is granted 28 days from the date of this order to file an amended complaint; DENYING without prejudice to renewal 4 and 6 Motions to Dismiss and VACATING the 12/29/2017 hearing of those motions. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIKE FRANKLIN,

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No. 2:17-cv-2138 KJM DB PS

Plaintiff,
v.

ORDER

VICKI ASHWORTH, et al.,
Defendants.

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Plaintiff is proceeding in this action pro se. This matter was, therefore, referred to the
undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
Plaintiff commenced this action on October 16, 2017, by filing a complaint and paying the

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required filing fee. (ECF No. 1.) Noticed for hearing before the undersigned on December 29,

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2017, are defendants’ motions to dismiss. (ECF Nos. 4 & 6.) However, on December 15, 2017,

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plaintiff filed a motion requesting leave to file an amended complaint. (ECF No. 12.) Defendants

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oppose plaintiff’s request. (ECF Nos. 13 & 15.)

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“Rule 15(a) is very liberal and leave to amend shall be freely given when justice so

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

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

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justice so 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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Here, the undersigned cannot yet say that granting plaintiff further leave to amend will

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prejudice the opposing party; is sought in bad faith; will produce an undue delay in the litigation;

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or is futile. Therefore, and in light of plaintiff’s pro se status, the undersigned will grant

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plaintiff’s request for leave to file an amended complaint.
Plaintiff is cautioned, however, that if plaintiff elects to file an amended complaint “the

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tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable

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to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While

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legal conclusions can provide the complaint’s framework, they must be supported by factual

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allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from

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conceivable to plausible[.]” Id. at 680 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an

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amended complaint complete. Local Rule 220 requires that any amended complaint be complete

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in itself without reference to prior pleadings. The amended complaint will supersede the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,

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just as if it were the initial complaint filed in the case, each defendant must be listed in the caption

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and identified in the body of the complaint, and each claim and the involvement of each

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defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file

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must also include concise but complete factual allegations describing the conduct and events

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which underlie plaintiff’s claims.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s December 15, 2017 motion for leave to amend (ECF No. 12) is granted;

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2. Plaintiff is granted twenty-eight days from the date of this order to file an amended

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complaint. The amended complaint must bear the case number assigned to this action and must

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be titled “Amended Complaint”;

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3. Plaintiff is cautioned that the failure to comply with this order in a timely manner may
result in a recommendation that this action be dismissed; and
4. Defendants’ motions to dismiss (ECF Nos. 4 & 6) are denied without prejudice to
renewal and the December 29, 2017 hearing of those motions is vacated.
Dated: December 26, 2017

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DLB:6
DB/orders/orders.pro se/franklin2138.lta.grt.ord

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