(PC) Lipsey v. Reddy ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CHRISTOPHER LIPSEY, JR., No. 2:17-cv-1434-KJM-EFB P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 REDDY, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in this action brought under 42 17 U.S.C. § 1983. Currently he is proceeding on his fourth amended complaint. Defendants move 18 for judgment on the pleadings as to plaintiff’s state law claims for failure of plaintiff to allege 19 facts showing compliance with California’s Government Claims Act. ECF No. 42. Plaintiff 20 responds by requesting leave to file a fifth amended complaint, which does allege compliance 21 with the Act. ECF No. 45. Defendants have filed no reply brief nor an opposition to plaintiff’s 22 request for leave to amend. For the reasons that follow, plaintiff’s request for leave to amend is 23 granted and it is recommended that defendants’ motion for judgment on the pleadings be denied 24 as moot. 25 I. Background 26 The court found service appropriate for defendants Ortiz, Smith, and Reddy (ECF No. 31) 27 and defendants answered the complaint on March 9, 2020 (ECF No. 41). Shortly after, they filed 28 a motion seeking judgment on the pleadings as to plaintiff’s state-law claims. ECF No. 42. 1 Plaintiff responds by arguing that he should be given an opportunity to amend his complaint to 2 cure that deficiency. ECF No. 45. He has submitted a fifth amended complaint that is identical to 3 his fourth amended complaint in all aspects except that it alleges compliance with the claim 4 presentation requirements of California’s Government Claims Act. Id. 5 II. The Motion for Judgment on the Pleadings and the Motion for Leave to Amend 6 As noted, defendants seek dismissal of the state-law claims “because [plaintiff] failed to 7 comply with the California Government Claims Act’s mandatory claims-presentation requirement 8 and allege that he had done so in the Complaint.” ECF No. 42 at 4. Plaintiff responds that he did, 9 in fact, comply with that requirement and asks that leave be granted leave to file a fifth amended 10 complaint which includes that allegation. He has appended a copy of that proposed amended 11 complaint to his opposition. Id. 12 As no scheduling order has issued in this case setting forth a time limit for amending the 13 pleadings, plaintiff’s motion for leave to amend is governed by Federal Rule of Civil Procedure 14 15(a). AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 952 (9th Cir. 2006). Rule 15 15(a) requires that leave to amend be freely granted when justice so requires. In analyzing 16 whether justice requires that leave to amend be granted, courts consider four factors: (1) bad faith, 17 (2) undue delay, (3) prejudice to the opposing party, and (4) futility of amendment. Roth v. 18 Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991). There is no indication of bad faith, undue 19 delay, prejudice to defendants, or futility in the present situation. In fact, defendants have 20 declined to oppose plaintiff’s request or make any presentation against the proposed amendment. 21 Accordingly, plaintiff’s request for leave to file a fifth amended complaint is granted. For clarity 22 of the court’s docket, the court will direct the Clerk to create a separate docket entry for ECF No. 23 45, pages 4 through 22, entitled “Fifth Amended Complaint.” 24 As the fifth amended complaint alleges compliance with California’s Government Claims 25 Act, the basis for defendants’ motion for judgment on the pleadings has been eliminated. 26 Accordingly, defendant’s motion should be denied as moot. 27 ///// 28 ///// MASS Gf UVM OING IVI ER Re MUO IR ee PAY VM VI 1 Il. Order and Recommendation 2 For the foregoing reasons, it is hereby ORDERED that: 3 1. Plaintiffs motion for leave to file a fifth amended complaint (ECF No. 45) is 4 GRANTED. 5 2. The Clerk of Court shall create a separate docket entry for the document appearing at 6 ECF No. 45, pages 4 through 22, entitled “Fifth Amended Complaint.” 7 Further, it is RECOMMENDED that defendants’ motion for judgment on the pleadings 8 || (ECF No. 42) be DENIED as moot. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 14 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | DATED: May 28, 2020. 17 Doolin 7 Sod 4 18 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28