(PC) Rockemore v. Vasquez ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SHAUNTEZ K. ROCKMORE, 1:21-cv-01339-GSA-PC 11 ORDER INFORMING PLAINTIFF THAT Plaintiff, HIS FIRST AMENDED COMPLAINT WAS 12 FILED ON JANUARY 17, 2023 vs. 13 (ECF No. 13.) VASQUEZ, et al., 14 ORDER IN RESPONSE TO PLAINTIFF’S Defendants. NOTICE 15 (ECF No. 15.) 16 17 I. BACKGROUND 18 Shauntez K. Rockmore (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On September 7, 2021, 20 Plaintiff filed the Complaint commencing this action. (ECF No. 1.) 21 On January 17, 2023, Plaintiff filed a request to amend the Complaint and also submitted 22 a proposed First Amended Complaint. (ECF No. 13, 14.) On February 9, 2023, Plaintiff filed a 23 notice informing the court that the verification signature on the First Amended Complaint was 24 not dated. (ECF No. 15.) 25 II. FIRST AMENDED COMPLAINT 26 On January 17, 2023, Plaintiff submitted a request to amend the complaint and also 27 submitted the proposed First Amended Complaint. (ECF No. 13, 14.) Plaintiff is advised that 28 his First Amended Complaint was filed on January 17, 2023. (ECF No. 13.) 1 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 2 pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, 3 a party may amend only by leave of the court or by written consent of the adverse party, and 4 leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Because Plaintiff had 5 not amended the complaint before, and no responsive pleading had been served in this action, 6 Plaintiff had leave to file an amended complaint as a matter of course, and therefore the First 7 Amended Complaint was filed on January 17, 2023. 8 III. PLAINTIFF’S NOTICE 9 On February 15, 2023, Plaintiff filed a notice informing the Court that he failed to date 10 the verification signature of his First Amended Complaint on page seven. Plaintiff submitted a 11 new dated-and-signed verification signature page, and he requests the Court to replace page seven 12 of the First Amended Complaint with the new page. Plaintiff is informed that may not add 13 information to the First Amended Complaint in this manner. 14 Local Rule 220 provides, in part: 15 Unless prior approval to the contrary is obtained from the Court, every pleading to which an amendment or supplement is permitted as a matter of right 16 or has been allowed by court order shall be retyped and filed so that it is complete in itself without reference to the prior or superseded pleading. No pleading shall 17 be deemed amended or supplemented until this Rule has been complied with. All changed pleadings shall contain copies of all exhibits referred to in the changed 18 pleading. 19 Under Rule 220, Plaintiff may not amend the First Amended Complaint by adding 20 information after the First Amended Complaint has been filed. To add information or make a 21 correction to the First Amended Complaint, Plaintiff must file a Second Amended Complaint 22 which is complete in itself. Here, because Plaintiff has already amended the complaint once, 23 Plaintiff requires leave of Court to file a Second Amended Complaint. 24 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so 25 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) 26 (quoting Fed. R. Civ. P. 15(a)). However, Courts “need not grant leave to amend where the 27 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue 28 delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is 1 insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan, 2 Inc., 244 F.3d 708, 712, 713 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 3 (9th Cir. 1999)). 4 The Court finds no bad faith or futility in Plaintiff’s proposed amendment. The proposed 5 supplemental information is merely the date that the verification was signed. Because the First 6 Amended Complaint awaits the Court’s requisite screening and has not been served, there will 7 be no undue delay or prejudice to Defendants in allowing Plaintiff to file a Second Amended 8 Complaint at this stage of the proceedings. Therefore, Plaintiff shall be granted leave to file a 9 Second Amended Complaint making the changes he proposes, within thirty days. 10 IV. CONCLUSION 11 Based on the foregoing, IT IS HEREBY ORDERED that: 12 1. Plaintiff is granted leave to amend the complaint; 13 2. The Clerk is directed to send Plaintiff a civil rights complaint form; 14 3. Within thirty days of the date of service of this order, Plaintiff shall file a Second 15 Amended Complaint, including the proposed signature page seven; 16 4. The Second Amended Complaint shall be clearly and boldly titled “Second 17 Amended Complaint,” shall refer to case number 1:21-cv-01339-GSA-PC, and 18 shall be an original signed under penalty of perjury; 19 5. If Plaintiff fails to submit a Second Amended Complaint within thirty days 20 pursuant to this order, this case shall proceed with the First Amended Complaint. 21 IT IS SO ORDERED. 22 23 Dated: February 21, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28