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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICKY RENE SANDERS, Petitioner, 8 9 10 United States District Court Northern District of California 11 Case No. 18-cv-01558-SI ORDER DENYING MOTION TO AMEND HABEAS PETITION v. Re: Dkt. No. 31 FRED FOLK, Respondent. 12 13 Petitioner has filed a motion for leave to amend his amended petition for writ of habeas 14 corpus. Docket No. 31. He states that he wants “to provide additional context and authority to his 15 existing claims.” Id. at 4. He does not attach a proposed second amended petition to his motion. 16 Federal Rule of Civil Procedure 15(a) provides that leave to amend should be freely given when 17 justice so requires, but the court cannot make that determination without seeing the proposed new 18 pleading. See Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (“Obviously, without this draft 19 complaint, the District Court cannot evaluate the merits of a plaintiff’s request . . . [T]he court had 20 nothing upon which to exercise its discretion.”) The motion for leave to file a second amended 21 petition is DENIED because petitioner failed to attach the proposed new pleading. Docket No. 31. 22 Petitioner’s failure to submit the proposed second amended petition is inexplicable in light of the 23 fact that the court specifically informed him in an order filed May 20, 2019, that he had to include 24 a proposed second amended petition with any motion to amend. Docket No. 25 at 2. 25 Moreover, because the court has already found cognizable claims for relief and petitioner 26 now urges that he does not seek to add any claims but rather provide “additional context and 27 authority to his existing claims,” it does not appear that further amendment is necessary. Once the 28 court determines that a claim has been stated, it is not necessary or wise for a pro se litigant to 1 continue to tinker with the pleading of that claim because he may plead himself out of a claim. As 2 the court stated in the order filed May 20, 2019, petitioner can use his traverse to make his legal 3 arguments about the claims already found cognizable. Id. 4 In the event that the parties were waiting for a ruling on the motion to amend before filing 5 their briefs, the court now sets the following new briefing schedule: No later than October 25, 6 2019, respondent must file and serve his answer to the amended petition or his motion to dismiss. 7 No later than November 22, 2019, petitioner must file and serve his traverse (if an answer is filed) 8 or his opposition (if a motion to dismiss is filed). 9 10 IT IS SO ORDERED. Dated: October 3, 2019 United States District Court Northern District of California 11 12 13 ______________________________________ SUSAN ILLSTON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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