(PC) Cardenas v. Unknown

Filing 45

ORDER signed by Magistrate Judge Dennis M. Cota on 10/16/2020 STRIKING plaintiff's 31 third amended complaint. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANNY J. CARDENAS,

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No. 2:19-CV-0691-TLN-DMC-P

Plaintiff,
v.

ORDER

B.S. EDWARDS, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. This action currently proceeds on Plaintiff’s second amended complaint, ECF

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No. 18. Defendants have been served and have filed their answer to the second amended

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complaint. See ECF Nos. 26 (waiver of service) and 28 (answer to second amended complaint).

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Pending before the Court is Plaintiff’s third amended complaint, ECF No. 31, filed without leave

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of Court.

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The Federal Rules of Civil Procedure provide that a party may amend his or her

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pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is

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one to which a responsive pleading is required, within 21 days after service of the responsive

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pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule

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12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all

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other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all
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the parties. See Fed. R. Civ. P. 15(a)(2). Where leave of court to amend is required and sought,

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the court considers the following factors: (1) whether there is a reasonable relationship between

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the original and amended pleadings; (2) whether the grant of leave to amend is in the interest of

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judicial economy and will promote the speedy resolution of the entire controversy; (3) whether

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there was a delay in seeking leave to amend; (4) whether the grant of leave to amend would delay

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a trial on the merits of the original claim; and (5) whether the opposing party will be prejudiced

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by amendment. See Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990). Leave to

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amend should be denied where the proposed amendment is frivolous. See DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

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In this case, Plaintiff attempted to amend as of right with a “supplement” to the

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original complaint filed on May 9, 2019. See ECF No. 10. On June 25, 2019, the Court granted

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Plaintiff an opportunity to file a single operative pleading or to stand on the original complaint

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without reference to the “supplement.” See ECF No. 14. Plaintiff elected to file a first amended

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complaint as of right. See ECF No. 18 (second amended complaint). Because Plaintiff has not

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sought or obtained leave of court or obtained a stipulation from Defendants to file a further

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amended complaint, the third amended complaint filed on August 27, 2020, will be stricken. This

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action continues to proceed on the second amended complaint.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s third amended complaint,
ECF No. 31, is stricken.

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Dated: October 16, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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