Brown v. Iosacco et al

Filing 48

ORDER by Judge Haywood S. Gilliam, Jr. DENYING WITHOUT PREJUDICE PLAINTIFFS 45 MOTION TO AMEND COMPLAINT.(terminating docket no. 44 ) (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 10/25/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM E. BROWN,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-00603-HSG (PR)

v.
R. AMIS, et al.,
Defendants.

ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION
TO AMEND COMPLAINT
Re: Dkt. Nos. 44, 45

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Plaintiff, an inmate at California State Prison, Los Angeles County, filed a pro se first

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amended complaint for damages under 42 U.S.C. § 1983 alleging violation of his religious rights

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at Pelican Bay State Prison, where he was previously incarcerated. The Court found that, when

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liberally construed, plaintiff’s allegations appear to state cognizable claims under § 1983 for

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violation of plaintiff’s First Amendment right to the free exercise of religion, First Amendment

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Establishment Clause rights, Fourteenth Amendment equal protection rights, and rights under the

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Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1.

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Defendants Espinoza, Amis, and Losacco were ordered served. They have filed a motion to

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dismiss and for summary judgment.

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Plaintiff has filed a motion to amend the complaint to name additional defendants. Federal

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Rule of Civil Procedure 15(a) provides that leave to amend shall be freely given “when justice so

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requires.” In considering whether to grant or deny a motion seeking leave to amend a complaint,

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the district court may consider whether there is bad faith, undue delay, prejudice to the opposing

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party, futility in the amendment, and whether the plaintiff has previously amended his complaint.

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Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Civil Local Rule 10-1 provides

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that any party moving to file an amended pleading must reproduce the entire proposed pleading

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and may not incorporate any part of a prior pleading by reference.

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Plaintiff has not included with his motion a proposed second amended complaint. Parties

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may not file piecemeal complaints or amendments that contain portions of claims and defendants.

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Therefore, plaintiff’s motion is DENIED for this reason. However, denial is without prejudice to

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filing another motion submitted with a proposed second amended complaint. Plaintiff is cautioned

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that, because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint or first amended
complaint by reference. If plaintiff decides to file another motion to amend with a proposed

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United States District Court
Northern District of California

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second amended complaint, he must do so within thirty-five (35) days from the filing date of this

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order. Defendants shall file an opposition or statement of non-opposition within twenty-eight

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(28) days of the date the motion is filed. If plaintiff wishes to file a reply, he must do so within

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fourteen (14) days of the date the opposition is filed.

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Plaintiff has also filed a request for an extension of time to file an opposition to

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defendants’ motion to dismiss and for summary judgment. Good cause appearing, the request is

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GRANTED. The Court will set a new dispositive motion briefing schedule after ruling on

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plaintiff’s renewed motion to amend his complaint. If plaintiff decides not to file another motion

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to amend his complaint, he must file his opposition to defendants’ motion to dismiss and for

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summary judgment within thirty-five (35) days from the filing date of this order. Defendants’

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reply is due fourteen (14) days thereafter.

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The Court notes that plaintiff has filed a set of interrogatories and a request for production

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of documents. Plaintiff is advised that the Court generally is not involved in the discovery process

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and only becomes involved when there is a dispute between the parties about discovery responses.

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Discovery requests and responses normally are exchanged between the parties without any copy

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being sent to the Court. See Fed. R. Civ. P. 5(d)(1) (listing discovery requests and responses that

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“must not” be filed with the Court until they are used in the proceeding or the Court orders

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otherwise). In sum, plaintiff must send discovery requests directly to defense counsel and not to
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the Court.
The Clerk is directed to correct the spelling of defendant Losacco’s name on the court
docket by substituting “Losacco” for “Iosacco.”

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This order terminates Docket Nos. 44 and 45.

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IT IS SO ORDERED.

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Dated: 10/25/2017

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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