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Will Moses Palmer, Iii v. Jeanne Woodford

June 8, 2012

WILL MOSES PALMER, III,
PLAINTIFF,
v.
JEANNE WOODFORD, ET AL.,
DEFENDANTS.



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

ORDER GRANTING PLAINTIFF'S MOTION TO FILE A SECOND AMENDED COMPLAINT (ECF Nos. 101, 107)

ORDER REQUIRING PLAINTIFF TO EITHER FILE THIRD AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS (ECF No. 103)

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND DIRECTING DEFENDANTS TO RE-SERVE DISCOVERY RESPONSES WITHIN FOURTEEN DAYS (ECF Nos. 104, 108)

ORDER DENYING PLAINTIFF'S MOTION TO AMEND THE DISCOVERY AND SCHEDULING ORDER (ECF No. 106)

THIRTY DAY DEADLINE

I. Background

Plaintiff Will Moses, Palmer, III ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following reconsideration of the prior Magistrate Judge's order revoking Plaintiff's in forma pauperis status, this action is proceeding on the first amended complaint, filed August 29, 2007, against Defendants Jordnt and Bardonnex for retaliation and denial of access to the court in violation of the First Amendment. (ECF No. 72.) On December 27, 2011, an order issued opening discovery in this action. (ECF No. 81.) Plaintiff filed a motion for leave to file a second amended complaint on April 4, 2012. (ECF No. 101.) On April 6, 2012, an order issued denying Plaintiff's motion because he had not submitted an amended complaint with his motion. (ECF No. 102.) On that same date, Plaintiff filed a second amended complaint. (ECF No. 103.) On May 15, 2012, Plaintiff filed a motion to compel discovery. (ECF No. 104.) On May 16, 2012, an order issued vacating the order denying Plaintiff's motion for leave to file an amended complaint, and directing Defendants to file an opposition or statement of non-opposition to the motions before the Court. (ECF No. 105.) On June 4, 2012, Plaintiff filed a motion to modify the scheduling order and discovery cut-off dates. (ECF No. 106.) Defendants filed a statement of non-opposition to Plaintiff's motion for leave to amend and an opposition to Plaintiff's motion to compel discovery on June 6, 2012. (ECF Nos. 107, 108.)

II. Motion for Leave to File Second Amended Complaint

Plaintiff seeks leave to file an amended complaint to add Defendants Lopez and Munoz as defendants. Defendants do not oppose the motion to file an amended complaint and request forty five days in which to file a responsive pleading, if the complaint is found to state a cognizable claim.

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)). Plaintiff's motion for leave to file a second amended complaint shall be granted.

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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, ...


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