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Tracy Taylor v. Susan Hubbard

May 15, 2012

TRACY TAYLOR,
PLAINTIFF,
v.
SUSAN HUBBARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION TO AMEND, DIRECTING CLERK'S OFFICE TO FILE LODGED SECOND AMENDED COMPLAINT, AND ORDERING DEFENDANTS

TO FILE A RESPONSIVE PLEADING AND AN OPPOSITION OR STATEMENT OF NON-OPPOSITION TO PLAINTIFF'S MOTIONS FOR INJUNCTIVE RELIEF (ECF No. 38, 40)

ORDER DENYING PLAINTIFF'S REQUEST FOR A QUICK DECISION (ECF No. 30) THIRTY-DAY DEADLINE

I. Procedural History

Plaintiff Tracy Taylor is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (the Religious Land Use and Institutionalized Persons Act of 2000) ("RLUIPA"). This action is proceeding on the first amended complaint, filed July 16, 2010, against Defendants Harrington and Wegman for violation of the Free Exercise Clause of the First Amendment, and Defendant Harrington for violation of RLUIPA. On January 9, 2012, Plaintiff filed a motion for a preliminary injunction and protective order and a request for a quick decision. (ECF No. 29, 30.) On March 23, 2012, Plaintiff filed a motion to amend his complaint, a motion for a preliminary injunction and/or protective order, and a second amended complaint was lodged. (ECF Nos. 38, 39, 40.) On March 30, 2012, Defendants filed a statement of non-opposition to Plaintiff's motion to file an amended complaint and requested an extension of time to file a responsive pleading. (ECF No. 42.) On April 2, 2012, the Court partially granted Defendants Harrington and Wegman' s request to extend time to file an answer to the complaint until after the Court decided Plaintiff's motion to amend. (ECF No. 43.)

II. Motion to Amendment

Plaintiff moves to amend his complaint to correct the name of Defendant Wegman and to add Defendant Cate. 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). "Rule 15(a) is very liberal and leave to amend 'shall be freely given when justice so requires.'" Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (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)).

Defendants have filed a statement of non-opposition to Plaintiff's motion to amend the complaint. Accordingly, Plaintiff's motion to file a second amend complaint shall be granted.

Plaintiff also requests a hearing on his motion for a preliminary injunction. Additionally, Plaintiff has filed a request that his motion for a preliminary injunction be heard immediately. At the time that Plaintiff filed his request for an immediate decision, service of process had not been effected upon Defendants in this action. The Local Rules provide for a motion, an opposition, and a reply. Now that Plaintiff's second amended complaint has been screened, the Court shall order Defendants to file an opposition or a statement of non-opposition to Plaintiff's motions for injunctive relief. Local Rule 230(l).

At this stage of the proceedings, the Court finds that a hearing is not necessary and Plaintiff's

motion shall be addressed once Defendants are afforded an opportunity to file an opposition to the motion and Plaintiff to file a reply. Accordingly, Plaintiff's request for an immediate decision and motion for a hearing shall be denied.

III. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 ...


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