(PC) Brummett v. Martinez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY BRUMMETT, JR., Case No. 1:21-cv-00086-DAD-BAM (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT 13 v. (ECF No. 42) 14 LOPEZ, et al., ORDER DIRECTING CLERK OF COURT TO 15 Defendants. FILE LODGED SECOND AMENDED COMPLAINT 16 (ECF No. 43) 17 ORDER FOR DEFENDANT TO FILE 18 RESPONSE TO SECOND AMENDED COMPLAINT WITHIN TWENTY-ONE (21) 19 DAYS 20 21 I. Introduction 22 Plaintiff Melvin Ray Brummett, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and 23 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds 24 against Defendant Martinez for retaliation in violation of the First Amendment and deliberate 25 indifference to risk of harm in violation of the Eighth Amendment. 26 Pursuant to the Court’s April 5, 2022 order granting Defendant’s motion to modify the 27 discovery and scheduling order, the deadline for filing all stipulated amendments or motions to 28 amend was extended to September 1, 2022. (ECF No. 39.) On May 31, 2022, Plaintiff filed a 1 motion for leave to amend the complaint and lodged a proposed second amended complaint. 2 (ECF Nos. 42, 43.) Defendant did not file a response, and the deadline to do so has expired. The 3 motion is deemed submitted. Local Rule 230(l). 4 II. Motion to Amend 5 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 6 pleading once as a matter of course at any time before a responsive pleading is served. 7 Otherwise, a party may amend only by leave of the court or by written consent of the adverse 8 party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). “Rule 15(a) 9 is very liberal and leave to amend shall be freely given when justice so requires.” 10 AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation and 11 quotation omitted). However, courts “need not grant leave to amend where the amendment: 12 (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in 13 litigation; or (4) is futile.” Id. 14 In his motion, Plaintiff states that his request is timely pursuant to the amended deadline 15 to file motions to amend pleadings, and he has not previously requested leave to amend his 16 complaint. (ECF No. 42.) Plaintiff has only amended due to the Court’s screening order. 17 Plaintiff states that when he amended his complaint following the Court’s screening order, he 18 failed to supply a proper timeline of events. Plaintiff further submitted an incorrect date in his 19 amended complaint at page 5, showing May 18, 2020 when it should have been May 24, 2020. 20 Plaintiff states that his request to amend is not for undue delay, bad faith, or dilatory motives and 21 should therefore be granted. (Id.) 22 Defendant’s failure to file an opposition or otherwise respond to Plaintiff’s motion to 23 amend and proposed second amended complaint is deemed a waiver of any opposition to the 24 granting of the motion and the Court therefore considers the motion unopposed. Local Rule 25 230(l). 26 In considering the relevant factors, the Court finds no evidence of bad faith, undue delay 27 in litigation, or futility. Further, as the motion is unopposed and was filed well before the 28 extended deadline—an extension requested by Defendant—the Court finds no evidence of 1 prejudice to Defendant. 2 The Court has reviewed the second amended complaint and notes that Plaintiff names 3 only Defendant Martinez as a defendant, and he has corrected the dates specified in his motion to 4 amend. To the extent the second amended complaint contains allegations related to claims or 5 defendants already dismissed by the District Judge’s September 23, 2021 order adopting findings 6 and recommendations, the Court clarifies that the only claims proceeding are the claims 7 against Defendant Martinez for retaliation in violation of the First Amendment and 8 deliberate indifference to risk of harm in violation of the Eighth Amendment. 9 III. Order 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s motion for leave to amend complaint, (ECF No. 42), is GRANTED; 12 2. The Clerk of the Court is directed to file the second amended complaint lodged on May 13 31, 2022, (ECF No. 43), as the operative complaint in this action; 14 3. Defendant Martinez is DIRECTED to file a response to the second amended complaint 15 within twenty-one (21) days from the date of service of this order; and 16 4. All other deadlines set by the Court’s April 5, 2022 order granting Defendant’s motion to 17 modify the discovery and scheduling order, (ECF No. 39), remain in place. 18 IT IS SO ORDERED. 19 20 Dated: June 23, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28