(PC) Dalke v. King ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JASON DALKE, ) Case No.: 1:20-cv-00534-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DISREGARDING PLAINTIFF’S 13 v. ) THIRD AMENDED COMPLAINT, LODGED ON JANUARY 8, 2021 14 KING CLARK, et al., ) ) (ECF No. 56 15 Defendants. ) ) 16 ) 17 Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 On January 8, 2021, Plaintiff submitted a third amended complaint which was lodged by the 20 Court because Plaintiff did not have permission. 21 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's 22 pleading once as a matter of course twenty-one days after serving, or if a response was filed, within 23 twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend 24 only by leave of the court or by written consent of the adverse party, and leave shall be freely given 25 when justice so requires. Fed. R. Civ. P. 15(a)(2). 26 Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’ ” 27 AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. 28 Civ. P. 15(a) ). However, courts “need not grant leave to amend where the amendment: (1) prejudices 1 || the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is 2 || futile.’ AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the futility factor, a plaintiff may not 3 || bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2); 4 || Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 5 || 2007). The burden to demonstrate prejudice falls upon the party opposing the amendment. DCD 6 || Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing 7 || of any of the remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave 8 || to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further, 9 || undue delay alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d 10 || 752, 758 (9th Cir. 1999). 11 Because Plaintiff has previously amended the complaint, twice, leave of court is necessary to 12 || further amend the complaint. Here, Plaintiff has not sought leave of court to amend the complaint, ar 13 || the Court can decipher the purpose of his amendment. See Lanier v. Fresno Unified School Dist., Nc 14 || 1:09-cv-01779-AWI-BAM, 2013 WL 3892953, at *1 (E.D. Cal. July 26, 2013) (“[a] court cannot 15 || evaluate the propriety of a motion to amend a pleading when the moving papers do not describe the 16 || proposed amendments [in detail] or attach the proposed amended pleading.”); see also Gardner v. 17 || Martino, 563 F.3d 981, 991 (9th Cir. 2009) (stating that district court did not abuse its discretion in 18 || denying request for leave to file an amended complaint where plaintiffs did not include a copy of the 19 || proposed amended complaint with their request to amend and the request failed to explain how the 20 || amendment would cure the deficiencies with the prior complaint). Accordingly, Plaintiffs third 21 amended complaint, lodged on January 8, 2021, is HEREBY DISREGARDED. 22 23 IS SO ORDERED. A (ee 24 |! Dated: _ January 26, 2021 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28