Scarlett v. The County of Santa Clara et al

Filing 13

Order Granting Leave to Amend Complaint. Signed by Judge Lucy H. Koh on 11/2/16. (lhklc2S, COURT STAFF) (Filed on 11/2/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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SIDNEY THEODORE SCARLETT,

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Plaintiff,

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Case No. 16-CV-05418-LHK
ORDER GRANTING LEAVE TO
AMEND COMPLAINT

v.

Re: Dkt. No. 9

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THE COUNTY OF SANTA CLARA, et al.,

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Defendants.

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On October 3, 2016, the Court denied Plaintiff’s motion for leave to proceed in forma

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pauperis on the ground that Plaintiff’s complaint was legally and factually frivolous. ECF No. 9.

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Under 28 U.S.C. § 1915(e), denial of leave to proceed in forma pauperis operated as a “dismissal

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of the complaint.” Rodriguez v. Steck, 795 F.3d 1187, 1188 (9th Cir. 2015). However, the Court’s

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October 3, 2016, order did not state whether the dismissal was with or without leave to amend.

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The Court therefore grants Plaintiff leave to amend Plaintiff’s complaint. Although the

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complaint “has made no particular factual allegations against Defendants, and the legal arguments

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Plaintiff makes are entirely irrelevant,” ECF No. 9 at 2, it is not “absolutely clear that no

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amendment can cure the defect[s]” in the complaint. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th

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Cir.1995) (per curiam). In these circumstances, Plaintiff is entitled to “an opportunity to amend

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Case No. 16-CV-05418-LHK
ORDER GRANTING LEAVE TO AMEND

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prior to dismissal of the action” with prejudice. Id.

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Therefore, the Court orders that Plaintiff shall file an amended complaint remedying the

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defects identified in the Court’s October 3, 2016 order within 21 days of this November 2, 2016

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order or face dismissal of this action with prejudice.

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IT IS SO ORDERED.

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Dated: November 2, 2016
______________________________________
LUCY H. KOH
United States District Judge

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United States District Court
Northern District of California

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Case No. 16-CV-05418-LHK
ORDER GRANTING LEAVE TO AMEND