Whatley v. Valdovinos

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA Reginald Whatley, Case No.: 18-cv-02761-CAB-BGS 12 Plaintiff, ORDER GRANTING MOTION TO v. AMEND G. Valdovinos et al., [ECF NO. 21] 15 Defendants.

18 Plaintiff Reginald Whatley is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983.

20 Plaintiff filed a Motion to Amend nunc pro tunc to September 9, 2019 in which he seeks to add defendants and claims to his lawsuit. (ECF No. 21.) However, Plaintiff did not attach a copy of his proposed amended complaint. (Id.) Defendant Valdovinos filed a Notice of Non-Opposition on September 25, 2019 stating that “Defendant does not oppose Plaintiff’s Motion to Amend Complaint.” (ECF No. 24.)

25 Federal Rule of Civil Procedure 15 states that a “party may amend its pleading once as a matter of course” twenty-one days after serving it or “21 days after service of a responsive pleading or 21 days after service of a motion under [Federal Rule of Civil Procedure] (b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or ||the court’s leave.” Id. at (a)(2).

3 Leave to amend should be “freely give[n]” when “justice so requires.” Jd. “Courts ||may decline to grant leave to amend only if there is strong evidence of undue delay, bad || faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by ||amendments previously allowed, undue prejudice to the opposing party... or futility of ||amendment[.]” Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 || (9th Cir. 2013) (citation and internal quotation marks omitted).

9 The Court finds none of the abovementioned applicable factors present in □□□□□□□□□□ |/request for leave to amend. Thus, and in light of Defendant’s non-opposition, □□□□□□□□□□□ 11 Motion to Amend (ECF No. 21) is GRANTED.

12 Plaintiff must file his amended complaint on or before November 8, 2019.

13 ||Defendant will file a responsive pleading in accordance with the applicable rules.

14 || Plaintiff's amended complaint must be complete in itself without reference to his original || pleading. Defendants not named and any claims not re-alleged in the amended complaint || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 17 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading || supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) || (noting that claims dismissed with leave to amend which are not re-alleged in an amended || pleading may be “considered waived if not repled.”).

21 IT IS SO ORDERED.

22 Dated: October 21, 2019 pEabal 23 on. Bernard G. Skomal 54 United States Magistrate Judge