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Horace Bell v. A. Romero

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 11, 2011

HORACE BELL,
PLAINTIFF,
v.
A. ROMERO, ET AL.,
DEFENDANTS.

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT (Doc. 29)

Order Denying Plaintiff's Motion Seeking Leave to Amend This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Horace Bell ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis. Plaintiff filed this action on November 17, 2009. Pending before the Court is Plaintiff's motion seeking leave to file a fourth amended complaint, filed April 22, 2010.

I. Background

Plaintiff filed his first amended complaint as a matter of right and had been granted permission to file a second amended complaint. On February 1, 2010, the Court screened Plaintiff's second amended complaint and dismissed that complaint giving leave to amend the complaint to correct its deficiencies. (Doc. 19). In its February 1st order, the Court cautioned Plaintiff that "no further amended pleadings will be permitted unless they are accompanied by a motion setting forth the grounds for the amendment and by a proposed amended pleading."

II. Motion to Amend

Plaintiff's motion to amend is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides that Plaintiff may amend with leave of the court, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). "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)). The "court's discretion to deny leave to amend is particularly broad where the court has already given the plaintiff an opportunity to amend his complaint," Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986).

In this instance, Plaintiff has been granted leave to file a second and third amended complaint and his request for leave to file a fourth amended complaint does not follow the requirements set out in the Court's February 1st order that requires future requests to amend pleadings to state "the grounds for the amendment" and to include "a proposed amended pleading." In this instance, Plaintiff motioned for permission to file a fourth amended complaint on April 22, 2010, and in that motion, Plaintiff fails to state "the grounds for the amendment." On May 5, 2010, Plaintiff submitted a fourth amended complaint which was filed in error. Upon review of Plaintiff's third amended complaint and Plaintiff's proposed fourth amended complaint, Plaintiff's allegations involve unrelated sets of facts and defendants in the third and proposed forth amended complaints. Additionally, Plaintiff's proposed fourth amended complaint clearly states that Plaintiff has not exhausted administrative remedies for the conduct alleged in the complaint. Since Plaintiff has failed to follow the directive of the Court's February 1st order and since the proposed fourth amended complaint, on its face, appears not to meet the exhaustion requirement, the Court is not inclined to grant leave to file a the fourth proposed amended complaint.

For the reasons set forth herein, Plaintiff's motion seeking leave to file a fourth amended complaint, filed on April 22, 2010, is HEREBY DENIED. If Plaintiff wishes to motion to request leave to amend in the future, Plaintiff must state "the grounds for amendment," must include "a proposed amended pleading," and Plaintiff cannot add claims or parties that are unrelated to those claims and parties described in the third amended complaint.

III. Conclusion and Order

Based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's motion for leave to filed a fourth amended complaint filed on April 22, 2010, is DENIED (Doc. 29).

2. The Clerk's office is directed to strike as filed in error the proposed fourth amended complaint filed on May 5, 2010 (Doc. 30).

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

20110111

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