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Ronald Fryer v. T. Wray

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 21, 2012

RONALD FRYER, PLAINTIFF,
v.
T. WRAY, DEFENDANT.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Before the court is plaintiff's April 9, 2012 first amended complaint. For the reasons stated below, the court orders it stricken from the docket.

Plaintiff commenced this action by filing a complaint on March 16, 2011. Dckt. No. 1. On February 8, 2012, the court directed the United States Marshal to serve defendant Wray with the complaint within fourteen days, that is, by February 22, 2012. Dckt. No. 14. On April 9, 2012, plaintiff filed an amended complaint. Dckt. No. 16.

Rule 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Because plaintiff did not amend his complaint within 21 days after serving it, his opportunity to amend "as a matter of course" had expired by the time he filed the amended complaint. Nonetheless, Rule 15(a)(2) provides that "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). When determining whether to grant leave to amend under Rule 15(a), a court should consider the following factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). Here, plaintiff has not complied with Rule 15(a)(2) because he has not requested leave of court to file an amended complaint, nor has he obtained defendant Wray's written consent.

Accordingly, the court hereby ORDERS that the amended complaint (Dckt. No. 16) is stricken and the Clerk shall make notation of such on the docket.

20120621

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