Ireland v. Penzone ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Howard George Ireland, No. CV-20-00650-PHX-SRB (ESW) 10 Plaintiff, ORDER 11 v. 12 Paul Penzone, et al., 13 Defendants. 14 15 This is a civil rights action brought pro se by Arizona inmate Howard George 16 Ireland (“Plaintiff”) pursuant to 42 U.S.C. § 1983. On April 21, 2020, the Court found 17 that Plaintiff’s Complaint (Doc. 1) adequately stated Fourteenth Amendment claims 18 against Defendant Penzone in Count One and Defendant Noggle in Count Two. (Doc. 5 19 at 4). Pending before the Court are Plaintiff’s “Motion for Leave to Amend” (Doc. 9) 20 and Plaintiff’s lodged First Amended Complaint. Plaintiff seeks to amend the Complaint 21 by adding a third cause of action. 22 Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading 23 “shall be freely given when justice so requires.” The Supreme Court has directed that 24 “this mandate is to be heeded” by the district courts. Forman v. Davis, 371 U.S. 178, 182 25 (1962). Similarly, the Ninth Circuit Court of Appeals has articulated this liberal standard, 26 stating that “Rule 15’s policy of favoring amendments to pleadings should be applied 27 with extreme liberality.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 28 1987). Although Rule 15(a) is very liberal, courts “need not grant leave to amend where 1 the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces 2 an undue delay in the litigation; or (4) is futile.” Amerisource Bergen Corp. v. Dialysis 3 West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). 4 An amended pleading operates as a complete substitute for the original 5 complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (citing Hal 6 Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990)). “All 7 causes of action alleged in an original complaint which are not alleged in an amended 8 complaint are waived.” Marx v. Loral Corp., 87 F.3d 1049, 1055-56 (9th Cir. 9 1996) (quoting King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987)). 10 Here, Plaintiff has lodged a First Amended Complaint that improperly 11 incorporates by reference the two counts presented in his original Complaint. The Court 12 will deny Plaintiff’s Motion (Doc. 9) without prejudice. By September 7, 2020, Plaintiff 13 may file a renewed Motion for Leave to Amend and lodge a First Amended Complaint 14 that complies with the Federal and Local Rules of Civil Procedure. This includes 15 compliance with Local Rule 15.1, which provides that: A party who moves for leave to amend a pleading must attach a copy of the 16 proposed amended pleading as an exhibit to the motion, which must 17 indicate in what respect it differs from the pleading which it amends, by bracketing or striking through the text to be deleted and 18 underlining the text to be added. The proposed amended pleading must 19 not incorporate by reference any part of the preceding pleading, including exhibits. 20 LRCiv 15.1(a) (emphasis added). In addition, Plaintiff’s First Amended Complaint must 21 be completed on the required court-approved form pursuant to Local Rule 3.4. Plaintiff 22 must indicate on the form that he is filing a First Amended Complaint. 23 Based on the foregoing, 24 IT IS ORDERED denying without prejudice “Motion for Leave to Amend” 25 (Doc. 9). 26 IT IS FURTHER ORDERED directing the Clerk of Court to mail Plaintiff a 27 court-approved form for filing a civil rights complaint by a prisoner. 28 1 IT IS FURTHER ORDERED that Plaintiff has until September 7, 2020 to re- 2|| file his Motion for Leave to Amend and to lodge a proposed First Amended Complaint 3 || that complies with the Federal and Local Rules of Civil Procedure. 4 Dated this 5th day of August, 2020. 5 7 Honorable Eileen S. Willett g United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-