Sanders v. Folk

Filing 32

ORDER DENYING MOTION TO AMEND HABEAS PETITION 31 (Illston, Susan) (Filed on 10/3/2019) (Additional attachment(s) added on 10/3/2019: # 1 *erroneous attachment Certificate/Proof of Service) (tfS, COURT STAFF). Modified on 10/3/2019 (tfS, COURT STAFF). (Additional attachment(s) added on 10/3/2019: # 2 Certificate/Proof of Service) (tfS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICKY RENE SANDERS,
Petitioner,

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United States District Court
Northern District of California

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Case No. 18-cv-01558-SI
ORDER DENYING MOTION TO
AMEND HABEAS PETITION

v.

Re: Dkt. No. 31

FRED FOLK,
Respondent.

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Petitioner has filed a motion for leave to amend his amended petition for writ of habeas

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corpus. Docket No. 31. He states that he wants “to provide additional context and authority to his

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existing claims.” Id. at 4. He does not attach a proposed second amended petition to his motion.

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Federal Rule of Civil Procedure 15(a) provides that leave to amend should be freely given when

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justice so requires, but the court cannot make that determination without seeing the proposed new

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pleading. See Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (“Obviously, without this draft

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complaint, the District Court cannot evaluate the merits of a plaintiff’s request . . . [T]he court had

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nothing upon which to exercise its discretion.”) The motion for leave to file a second amended

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petition is DENIED because petitioner failed to attach the proposed new pleading. Docket No. 31.

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Petitioner’s failure to submit the proposed second amended petition is inexplicable in light of the

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fact that the court specifically informed him in an order filed May 20, 2019, that he had to include

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a proposed second amended petition with any motion to amend. Docket No. 25 at 2.

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Moreover, because the court has already found cognizable claims for relief and petitioner

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now urges that he does not seek to add any claims but rather provide “additional context and

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authority to his existing claims,” it does not appear that further amendment is necessary. Once the

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court determines that a claim has been stated, it is not necessary or wise for a pro se litigant to

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continue to tinker with the pleading of that claim because he may plead himself out of a claim. As

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the court stated in the order filed May 20, 2019, petitioner can use his traverse to make his legal

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arguments about the claims already found cognizable. Id.

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In the event that the parties were waiting for a ruling on the motion to amend before filing

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their briefs, the court now sets the following new briefing schedule: No later than October 25,

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2019, respondent must file and serve his answer to the amended petition or his motion to dismiss.

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No later than November 22, 2019, petitioner must file and serve his traverse (if an answer is filed)

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or his opposition (if a motion to dismiss is filed).

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IT IS SO ORDERED.
Dated: October 3, 2019

United States District Court
Northern District of California

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______________________________________
SUSAN ILLSTON
United States District Judge

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