Ackerman v. Skolnick et al

Filing 24

ORDER Denying as Moot 8 and 16 Motion to Amend/Correct Petition, and Granting 19 Motion to Amend/Correct Petition. Clerk shall detach and file the amended petition. Signed by Judge Gloria M. Navarro on 4/28/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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HOWARD B. ACKERMAN,
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Petitioner,
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vs.
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DIRECTOR HOWARD SKOLNICK, et al., )
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Respondents.
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2:10-CV-01088-GMN-LRL
ORDER

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This is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in which Petitioner,

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a state prisoner, is proceeding with representation of counsel. On July 2, 2010, Petitioner filed his

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Petition with the Court (ECF No. 1). On November 12, 2010, Respondents filed a Motion to Dismiss

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(ECF No. 8). On December 29, 2010, Petitioner moved for leave to file an Amended Petition (ECF No.

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16). Respondents filed a Response to this Motion stating that they did not oppose the amendment. (ECF

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No. 18.) The Court has not yet ruled on this Motion. Petitioner now moves the Court a second time for

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leave to file an Amended Petition (ECF No. 19). Respondents have opposed the Motion (ECF No. 20),

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and Petitioner has replied (ECF No. 23).

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Petitioner seeks to amend his Petition so that he can clarify and expand the factual basis

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supporting his grounds for relief. Respondents argue that Petitioner fails to show that justice requires

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allowing the amendment.

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Under 28 U.S.C. § 2254 R. 11, the Federal Rules of Civil Procedure are applicable to habeas

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petitions to the extent they are not inconsistent with the Habeas Rules. Morrison v. Mahoney, 399 F.3d

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1042, 1046 n. 5 (9th Cir. 2005). A party may amend its pleading at any time during a proceeding either

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with the opposing party’s written consent or with the court’s leave. Fed. R. Civ. P. 15(a)(2). “The court

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should freely give leave when justice so requires.” Id. In considering whether to grant or deny leave

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to amend, a court may “take into consideration such factors as ‘bad faith, undue delay, prejudice to the

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opposing party, futility of the amendment, and whether the party has previously amended his

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pleadings.’” In re Morris, 363 F.3d 891, 894 (9th Cir. 2004) (quoting Bonin v. Calderon, 59 F.3d 815,

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845 (9th Cir. 1995)).

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In this case, it does not appear that Petitioner seeks leave to amend in bad faith or with undue

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delay. Additionally, Petitioner has not previously filed an amended pleading and the prejudice to

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Respondents is minimal. Accordingly, the Court grants Petitioner leave to file an Amended Petition.

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Because Respondents’ motion to dismiss is predicated on the earlier filed petition, the Court denies the

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motion without prejudice so that Respondents may bring a subsequent motion to dismiss based on the

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amended petition if they so choose.

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IT IS THEREFORE ORDERED that Petitioner’s Second Motion for Leave to File an

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Amended Petition (ECF No. 19) is GRANTED. The Clerk shall DETACH and FILE the Amended

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Petition.

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IT IS FURTHER ORDERED that Petitioner’s First Motion for Leave to File an Amended
Petition (ECF No. 16) is DENIED as moot.

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IT IS FURTHER ORDERED that Respondents’ Motion to Dismiss (ECF No. 8) is DENIED

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without prejudice. Respondents shall have thirty (30) days from the date of service of this Order to file

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their answer or other response to the Amended Petition for Writ of Habeas Corpus.

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DATED this 28th day of April, 2011.

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Gloria M. Navarro
United States District Judge

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