Hausken v. Lewis et al

Filing 39

ORDER denying 35 Motion to Amend signed by Judge J Richard Creatura.(MET) cc: Plaintiff w/complaint form.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PHILLIP BURTON HAUSKEN,

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Plaintiff,

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CASE NO. C12-5882 BHS-JRC
ORDER DENYING PLAINTIFF’S
MOTION TO AMEND THE
COMPLAINT WITHOUT
PREJUDICE

v.
D. LEWIS et al.,
Defendants.

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The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States
Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §
636(b)(1)(A) and (B), and Magistrate Judge Rules MJR3 and MJR4.
Plaintiff asks the Court for leave to amend his complaint (ECF No 35). The Court denies
the motion without prejudice because plaintiff has not complied with the Court’s Local Rule on
amending a pleading. The Court instructs the clerk’s office to send plaintiff a copy of the Court’s
civil rights complaint form.
This is plaintiff’s second motion to amend the complaint (ECF No. 29). The Court denied
the first motion because it involved completely new defendants and a completely different cause
ORDER DENYING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT WITHOUT
PREJUDICE - 1

1 of action that plaintiff had already litigated and lost (ECF No. 37, order denying first motion).
2 Plaintiff’s current motion (ECF No. 35) asks for leave to add two new defendants (id.).
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In the Ninth Circuit, pro se plaintiffs should be given leave to amend prior to dismissal

4 “unless it is absolutely clear that the deficiencies of the complaint could not be cured by
5 amendment.” Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984) (citation and internal
6 quotations omitted); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Rizzo v.
7 Dawson, 778 F.2d 527, 529-30 (9th Cir. 1985); cf. Denton v. Hernandez, 504 U.S. 25, 34 (1992)
8 (suggesting that if the complaint’s deficiencies could be remedied by amendment, then it may be
9 abuse of discretion to dismiss complaint without granting leave to amend).
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Plaintiff names two new defendants in his motion, but he does not provide the Court with

11 a new proposed amended complaint (ECF NO. 35). Local Rule 15 states:
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A party who moves for leave to amend a pleading, or who seeks to amend a
pleading by stipulation and order, must attach a copy of the proposed amended
pleading as an exhibit to the motion or stipulation. The party must indicate on the
proposed amended pleading how it differs from the pleading that it amends by
bracketing or striking through the text to be deleted and underlining or
highlighting the text to be added. The proposed amended pleading must not
incorporate by reference any part of the preceding pleading, including exhibits. If
a motion or stipulation for leave to amend is granted, the party whose pleading
was amended must file and serve the amended pleading on all parties within
fourteen (14) days of the filing of the order granting leave to amend, unless the
court orders otherwise.

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The Court denies plaintiff’s motion without prejudice and the Court instructs the clerk’s

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19 office to send plaintiff a blank civil rights form. Plaintiff may file a new motion to amend his
20 complaint and plaintiff will need to attach his proposed amended complaint to that motion.
21 Plaintiff does not need to bracket or underline his changes. If plaintiff’s motion is granted, the
22 original complaint will no longer be considered by the Court and only the amended complaint
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ORDER DENYING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT WITHOUT
PREJUDICE - 2

1 will be before the Court. The Court will then review plaintiff’s proposed amended complaint and
2 the Court will decide if the new complaint can be filed and served.
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Dated this 3rd day of July, 2013.

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A
J. Richard Creatura
United States Magistrate Judge

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ORDER DENYING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT WITHOUT
PREJUDICE - 3