Wallace v. Lemoore PD

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA

10 JAMES EDWARD WALLACE, Case No. 1:21-cv-01275-KES-EPG 11 Plaintiff, ORDER GRANTING MOTION FOR 12 v. LEAVE TO FILE THIRD AMENDED COMPLAINT COSPER, et al., (ECF No. 70) 14 Defendants.

16 Plaintiff James Edward Wallace proceeds in forma pauperis and with counsel in this civil rights action. This matter is before the Court on Plaintiff’s motion for leave to file a third amended complaint, filed on December 13, 2024. (ECF No. 70). As stated in the motion, 19 [t]he proposed amendment seeks to add 2 new defendants: the City of Lemoore and Chief Darrell Smith (but only to the relevant proposed new causes of action), and to allege 5 new causes of action (against all defendants as 21 applicable) based on the Plaintiff’s recent acquittal from criminal charges related to this lawsuit's underlying facts. (Id. at 2). Elsewhere, Plaintiff lists the following causes of action to be added as follows: “First Amendment Retaliation and Fourth Amendment Malicious Prosecution against the currently named defendants, and California common law Malicious Prosecution, California Constitution Article I, Section 13 violations and Negligence against all defendants, including the proposed defendants.” (Id. at 12).

No Defendant has timely opposed the motion under the Court’s Local Rules, and the “failure to file a timely opposition may . . . be construed by the Court as a nonopposition to the motion.” Local Rule 230(c).

2 Under Rule 15(a), a party may amend a pleading once as a matter of course within twenty-one days of service, or if the pleading is one to which a response is required, twenty-one days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1)(B). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

7 Granting or denying leave to amend is in the discretion of the Court. Swanson v. United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996). Leave should be “freely give[n] . . .

9 when justice so requires,” Fed. R. Civ. P. 15(a)(2). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

12 Consequently, the policy favoring the grant of leave to amend is applied with “extreme liberality.” Id. (citation omitted). “Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the plaintiff has previously amended the complaint.” Desertrain v. City of L.A., 754 F.3d 1147, 1154 (9th Cir. 2014) (quoting Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)).

18 With these standards in mind, the Court will grant Plaintiff leave to file a third amended complaint. There is no indication of bad faith or undue delay. While Plaintiff has previously amended the complaint, Plaintiff only recently learned of the basis for the new claims following Plaintiff’s acquittal of criminal charges relating to the incident at issue in this case.

22 Additionally, no Defendant has argued that amendment will be prejudicial, nor does prejudice appear to be implicated based on the circumstances of the case. Lastly, the newly alleged claims do not appear to be futile.

25 Accordingly, IT IS ORDERED as follows: 26 1. Plaintiff’s motion for leave to file a third amended complaint (ECF No. 70) is 27 granted.

28 2. Plaintiff shall file a copy of the proposed third amended complaint (ECF No. 70- 1 2) within seven (7) days of the entry of this order.

2 3. The Clerk of Court shall list the City of Lemoore and Chief Darrell Smith as 3 Defendants on the docket.

4 4. Defendants shall respond to the third amended complaint (once filed) within the 5 time provided under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 6 15(a). g IT IS SO ORDERED. ° |! Dated: _ January 6, 2025 [Jee hey 10 UNITED STATES MAGISTRATE JUDGE