(PC) Diggs v. John Doe ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LONNELL BRANDON DIGGS, 1:19-cv-00766-GSA-PC 12 Plaintiff, ORDER GRANTING MOTION TO FILE SECOND AMENDED 13 vs. COMPLAINT (ECF No. 11.) 14 JOHN DOE, et al., ORDER FOR CLERK TO FILE 15 Defendants. SECOND AMENDED COMPLAINT LODGED ON JULY 15, 2019 16 (ECF No. 12.) 17 18 19 20 21 22 23 I. BACKGROUND 24 Lonnell Brandon Diggs (“Plaintiff”) is a state prisoner proceeding pro se and in forma 25 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 26 commencing this action on May 31, 2019. (ECF No. 1.) 27 On June 21, 2019, Plaintiff filed the First Amended Complaint as a matter of course. 28 (ECF No. 9.) On July 15, 2019, Plaintiff filed a request for the clerk to disregard the First 1 Amended Complaint and to instead file the amended complaint lodged by Plaintiff. (ECF Nos. 2 11, 12.) 3 The court construes Plaintiff’s request as a motion to file a Second Amended Complaint. 4 The motion is now before the court. L. R. 230(l). 5 II. LEAVE TO AMEND – RULE 15(a) 6 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 7 pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, 8 a party may amend only by leave of the court or by written consent of the adverse party, and 9 leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Because Plaintiff has 10 already amended the Complaint, he requires leave of court to file the Second Amended 11 Complaint. 12 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so 13 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) 14 (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the 15 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue 16 delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is 17 insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan, 18 Inc., 244 F.3d 708, 712, 713 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 19 (9th Cir. 1999)). 20 Discussion 21 The court finds no bad faith or futility in Plaintiff’s proposed amendment. The proposed 22 Second Amended Complaint arises from the same events at issue in the original Complaint as 23 well as in the First Amended Complaint for this action. Plaintiff has identified some of the Doe 24 Defendants in the proposed Second Amended Complaint. Because the First Amended Complaint 25 awaits the court’s requisite screening and has not been served there will be no undue delay or 26 prejudice to Defendants in allowing Plaintiff to proceed with the Second Amended Complaint. 27 Therefore, Plaintiff shall be granted leave to amend, and the Second Amended Complaint shall 28 be filed. 1 /// 2 III. CONCLUSION 3 Based on the foregoing, IT IS HEREBY ORDERED that: 4 1. Plaintiff is granted leave to amend the complaint; 5 2. The Clerk is directed to file the proposed Second Amended Complaint as of the 6 date of lodging, July 15, 2019; and 7 3. The Second Amended Complaint shall be screened in due time. 8 IT IS SO ORDERED. 9 10 Dated: November 5, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28