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Alvarez v. Neubarth

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 11, 2008

CARLOS ALVAREZ, PLAINTIFF,
v.
DOCTOR NEUBARTH, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT (Doc. 11) THIRTY DAY DEADLINE

Plaintiff is a state prisoner proceeding pro se an in forma pauperis in this civil rights action. On August 25, 2008, Plaintiff filed a motion seeking leave to file a second amended complaint. (Doc. 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. 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. Fed. R. Civ. P. 15(a). In this case, plaintiff has previously amended his complaint. Therefore, plaintiff may file a second amended complaint only with leave of the court.

"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, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)).

Good cause appearing, Plaintiff shall be granted leave to file a second amended complaint. Plaintiff shall file a second amended complaint within thirty (30) days of service of this order. Failure to comply with this Court order may result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

20081211

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