Casterlow-Bey v. Caruso et al

Filing 19

ORDER granting 16 Motion to Amend. Plaintiff may file a second amended complaint containing all his allegations, including his conspiracy claim and alleged injury from lack of access to the courts, on or before 11/17/17. Signed by Magistrate Judge J Richard Creatura.(CMG)(cc mailed to Plaintiff w/amd cmplt form and pro se info sheet)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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GARY CASTERLOW-BEY,
Plaintiff,

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ORDER GRANTING MOTION TO
AMEND

v.

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CASE NO. 3:17-cv-05605-RJB-JRC

CARUSO, et al.,
Defendant.

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This 42 U.S.C. § 1983 civil rights matter has been referred to the undersigned Magistrate

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Judge pursuant to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1,

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MJR 3, and MJR 4.

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Plaintiff requests that he be allowed to add a conspiracy claim to his amended complaint,

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and he has filed a separate supplement alleging further unconstitutional behavior by defendants.

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The Court interprets these collectively as a motion for leave to file an amended complaint.

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Because the Court believes it is in the interests of justice to allow plaintiff to raise these

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additional claims, plaintiff’s motion for leave to amend is granted.

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ORDER GRANTING MOTION TO AMEND - 1

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BACKGROUND
Plaintiff filed his original complaint in August of 2017. Dkt. 1. Pursuant to an order from

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the Court, he filed an amended complaint, alleging violations of the 1st, 5th, 8th, and 14th

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Amendments when defendants allegedly housed him in unconstitutional conditions and blocked

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his access to legal materials. Dkt. 13. Subsequently, plaintiff filed a motion to add a conspiracy

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claim under 42 U.S.C. § 1985. Dkt. 16. He later filed a “supplement” to his amended complaint,

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explaining the alleged injury he suffered when defendants allegedly blocked his access to the

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courts. Dkt. 18. The Court interprets these two filings collectively as a motion to amend his

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current complaint.

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DISCUSSION

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Plaintiff requests that the Court allow him to add a conspiracy claim to his amended

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complaint and has also filed a separate supplement to his complaint. As a matter of course, a

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party may amend its pleading once within 21 days of serving it or, if it is a pleading requires a

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response, within 21 days after service of the response. Fed. R. Civ. Proc. 15(a)(1). In all other

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cases, “a party may amend its pleading only with . . . the court’s leave.” Id. (a)(2). “The court

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should freely give leave when justice so requires.” Id. The Court interprets plaintiff’s motion to

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add the conspiracy claim as a motion for leave to file a second amended complaint.

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Here, the Court believes the interests of justice dictate that plaintiff have the opportunity

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to file an amended complaint. Accompanying plaintiff’s motion is a memorandum explaining an

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alleged conspiracy depriving plaintiff of access to the courts and housing him in harsh, allegedly

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unconstitutional conditions. Dkt. 16. In a separate document, he further alleges that defendants

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have inhibited his ability to access the courts by refusing to provide him writing materials,

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apparently causing him to miss several deadlines. Dkt. 18. The Court notes that plaintiff has

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ORDER GRANTING MOTION TO AMEND - 2

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neglected to include an explicit showing that the defendants reached a unity of purpose or

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common design for his conspiracy allegations. Gilbrook v. City of Westminster, 177 F.3d 839,

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856 (9th Cit. 1999). However, the Court finds that it would not serve the ends of justice to deny

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plaintiff’s request to amend his complaint. Therefore, plaintiff’s motion (Dkt. 16) is granted.

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Plaintiff may file a second amended complaint containing all his allegations, including his

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conspiracy claim and alleged injury from lack of access to the courts, on or before November

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17, 2017. In order to comply with Court rules, all of plaintiff’s allegations must be set forth in a

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single complaint. The Court will not consider the additional allegations raised in his motion or

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his supplement unless they are incorporated into this second amended complaint.

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CONCLUSION
The Court grants plaintiff’s request and allows plaintiff to file a second amended

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complaint. If plaintiff wishes to include the additional claims raised in his motion and his

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supplement, he must present this second amended complaint on the form provided by the Court,

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incorporating all the claims he wishes to bring against defendants. The second amended

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complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a

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copy, it should contain the same case number, and it may not incorporate any part of the

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amended complaint by reference. The second amended complaint will act as a complete

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substitute for the amended complaint, and not as a supplement. A second amended complaint

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supersedes the amended complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.

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1997) overruled in part on other grounds, Lacey v. Maricopa County,693 F.3d 896 (9th Cir.

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2012). Therefore, the second amended complaint must be complete in itself and all facts and

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causes of action alleged in the amended complaint that are not alleged in the second amended

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complaint are waived. Forsyth, 114 F.3d at 1474. The Court will screen the second amended

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ORDER GRANTING MOTION TO AMEND - 3

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complaint to determine whether it contains factual allegations linking each defendant to the

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alleged violations of plaintiff’s rights. The Court will not authorize service of the amended

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complaint on any defendant who is not specifically linked to a violation of plaintiff’s rights.

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If plaintiff fails to file a second amended complaint containing all his allegations on or

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before November 17, 2017, the current amended complaint (Dkt. 13) will remain the operative

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complaint in this action. The Court will not consider the additional allegations raised in

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plaintiff’s motion (Dkt. 16) or his supplement (Dkt. 18) unless they are incorporated into the

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second amended complaint.

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The Clerk is directed to send plaintiff the appropriate forms for filing a 42 U.S.C. § 1983

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civil rights complaint and for service. The Clerk is further directed to send copies of this order

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and Pro Se Instruction Sheet to plaintiff.

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Dated this 17th day of October, 2017.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER GRANTING MOTION TO AMEND - 4