McCarty v. Kernan

Filing 21

ORDER signed by Magistrate Judge Kendall J. Newman on 6/21/2018 DENYIING without prejudice 17 Motion to Amend. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH G. MCCARTY,

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Petitioner,

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v.

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No. 2:18-cv-0037 KJN P

ORDER

SCOTT KERNAN,

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Respondent.

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Petitioner is a state prisoner, proceeding pro se, with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On June 1, 2018, petitioner filed a one-page document

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entitled, “Request to Amend.” (ECF No. 17.) Petitioner seeks to “add some case laws and

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changes to petition which will hopefully help the court to understand [his] unique case.” (Id.)

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Petitioner is advised that court permission is not required to amend once as a matter of

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right before respondent files a responsive pleading. Fed. R. Civ. P. 15(a).1 If petitioner filed an
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Rule 15(a) provides:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of
course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service
of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the
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amended petition that meets the requirements of Rule 15(a)(1), he is not required to file a motion.

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However, if he does not comply with the requirements of Rule 15(a)(1), and must amend subject

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to Rule 15(a)(2), petitioner must file a motion to amend and append his proposed amended

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petition for consideration. Because respondent has not yet filed a responsive pleading,

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petitioner’s motion is premature, and is denied without prejudice.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to amend (ECF No. 17)

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is denied without prejudice.

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Dated: June 21, 2018

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/cw/mcca0037.mta

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opposing party's written consent or the court's leave. The court should freely give leave when
justice so requires.

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Fed. R. Civ. P. 15(a).
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