Garcia v. Glebe

Filing 20

ORDER signed by Judge J Richard Creatura denying 17 Motion to Supplement the record and Granting Leave to File First Amended Complaint by 8/21/15 (Attachments: # 1 Complaint Form) **8 PAGES, PRINT ALL**(MET)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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10 EDGAR R GARCIA,
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Plaintiff,

ORDER DENYING MOTION TO
SUPPLEMENT THE RECORD AND
GRANTING LEAVE TO FILE FIRST
AMENDED COMPLAINT

v.

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CASE NO. 3:14-CV-05990-RBL-JRC

13 PATRICK GLEBE,
Defendant.

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The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States

17 Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §
18 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4.
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Plaintiff, proceeding pro se and in forma pauperis, filed this civil rights complaint

20 pursuant to 42 U.S.C. § 1983. Presently before the Court is plaintiff’s motion to supplement the
21 record (Dkt. 17). Plaintiff seeks to supplement his allegations against defendant and add exhibits
22 to the record. Id. Defendant filed a response (Dkt. 18) and plaintiff filed a reply (Dkt. 19). Also
23 pending is defendant’s motion to dismiss (Dkt. 11), which the Court will address in a separately
24 filed Report and Recommendation.

ORDER - 1

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Under Rule 15(a) of the Federal Rules of Civil Procedure,

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(1) Amending as a Matter of Course
A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.

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(2) Other Amendments
In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires

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Defendant filed a motion to dismiss -- a responsive pleading -- on February 27, 2015. Dkt.
11. Plaintiff filed his motion to supplement the record on June 18, 2015, which was more than 21
days after the motion to dismiss was filed. See Dkt. 17. As plaintiff is unable to amend his
complaint as a matter of course under Rule 15(a)(1) and does not have defendant’s consent to

13 amend, he must have leave of the court to amend his complaint.
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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so

15 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)
16 (quoting Fed.R.Civ.P. 15(a)). In determining whether leave to amend is appropriate, the district
17 court considers ‘the presence of any of four factors: bad faith, undue delay, prejudice to the
18 opposing party, and/or futility.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708,
19 712 (9th Cir. 2001) (quoting Griggs v. Pace Am. Group, Inc.. 170 F.3d 877, 880 (9th Cir. 1999)).
20 Further, the Ninth Circuit “established that a pro se litigant bringing a civil rights suit must have
21 an opportunity to amend the complaint to overcome deficiencies unless it is clear that [the
22 deficiencies] cannot be overcome by amendment.” Eldridge v. Block, 832 F.2d 1132, 1135-36
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ORDER - 2

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Plaintiff filed his motion to supplement the record attempting to cure the deficiencies in

2 his original complaint, which were raised in defendant’s pending motion to dismiss. See Dkts.
3 11, 17. Allowing plaintiff to amend his complaint will not result in undue delay. The Court must
4 also provide plaintiff with the opportunity to amend his complaint, as plaintiff, a pro se litigant,
5 appears to be able to cure the deficiencies of his complaint. Accordingly, the Court finds that
6 justice requires that plaintiff be allowed to amend his complaint.
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In addition, plaintiff is advised that the amended complaint will operate as a complete

8 substitute for (rather than a mere supplement to) the original complaint (Dkt. 7). In other words,
9 an amended complaint supersedes the original in its entirety, making the original as if it never
10 existed. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Reference to a prior
11 pleading or another document is unacceptable – once plaintiff files an amended complaint, the
12 original pleading or pleadings will no longer serve any function in this case. Therefore,
13 plaintiff’s request to “supplement” his amended complaint is denied. Plaintiff must file a new
14 and complete complaint – which he should title “First Amended Complaint.” All claims and the
15 involvement of every defendant should be included in the first amended complaint; otherwise,
16 the claims will no longer be the subject of the action.
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Plaintiff’s motion to supplement the record (Dkt. 17) is denied. Plaintiff may file an

18 amended complaint on or before August 21, 2015. If plaintiff fails to submit a complete
19 amended complaint by that date, this action will proceed on the original complaint (Dkt. 7).
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Dated this 20th day of July, 2015.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER - 3