(PC) Lipsey v. Hand-Ronga

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA

11 CHRISTOPHER LIPSEY, JR., 1:17-cv-01704-LJO-GSA-PC 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS ENTERED ON 13 vs. AUGUST 7, 2019 (ECF No. 28.)

14 N. HAND-RONGA, et al., ORDER GRANTING PLAINTIFF LEAVE 15 Defendants. TO AMEND AND DIRECTING CLERK TO FILE FOURTH AMENDED 16 COMPLAINT LODGED ON AUGUST 26, 2019 17 (ECF No. 30.)

19 I. BACKGROUND 20 Christopher Lipsey, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 19, 2017. (ECF No. 1.) On April 9, 2018, Plaintiff filed the First Amended Complaint as a matter of course. (ECF No. 12.)

24 On September 24, 2018, the court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (ECF No. 15.) On December 3, 2018, Plaintiff filed the Second Amended Complaint. (ECF No. 18.) On February 7, 2019, Plaintiff lodged a proposed Third Amended Complaint which the court construed as a request for leave to amend. (ECF No. 21.) On February 13, 2019, the court granted Plaintiff leave to amend and the Third Amended Complaint was filed previously on February 12, 2019. (ECF Nos. 22, 23.)

3 On August 7, 2019, the court screened the Third Amended Complaint and entered findings and recommendations, recommending that this case be dismissed for Plaintiff’s failure to state a claim. (ECF No. 28.) On August 26, 2019, Plaintiff filed objections to the findings and recommendations and lodged a proposed Fourth Amended Complaint, which the court construes as a request for leave to amend. (ECF Nos. 29, 30.)

8 Plaintiff’s request for leave to amend the complaint is now before the court. 28 U.S.C. 1915A.

10 II. LEAVE TO AMEND – RULE 15(a) 11 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Id. Here, because Plaintiff has already amended the complaint more than once and no other parties have appeared, Plaintiff requires leave of court to file a Fourth Amended Complaint.

17 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712, 713 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)).

25 Discussion 26 The court finds no bad faith or futility in Plaintiff’s proposed amendment. The proposed Fourth Amended Complaint arises from the same events at issue in the Third Amended Complaint for this action, but it appears that Plaintiff has added more factual allegations.

1 Allowing Plaintiff to file the Fourth Amended Complaint at this stage of the proceedings will not cause undue delay or prejudice to Defendants. Therefore, Plaintiff shall be granted leave to amend, and the Fourth Amended Complaint shall be filed.

4 In light of this ruling, the court shall vacate its findings and recommendations entered on August 7, 2019. The Fourth Amended Complaint shall be screened in due course.

6 III. CONCLUSION 7 Based on the foregoing, IT IS HEREBY ORDERED that: 8 1. Plaintiff is granted leave to amend the complaint; 9 2. The Clerk is directed to file the proposed Fourth Amended Complaint, which was 10 lodged on August 26, 2019 (ECF No. 30); 11 3. The findings and recommendations entered on August 7, 2019, are vacated; and 12 4. The Fourth Amended Complaint shall be screened in due course.

IT IS SO ORDERED.

15 Dated: September 16, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE