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Xavier v. French

United States District Court, E.D. California

June 5, 2014

GARY R. XAVIER, Plaintiff,
v.
M. FRENCH, et al., Defendants.

ORDER

CAROLYN K. DELANEY, Magistrate Judge.

This prisoner civil rights action brought pursuant to 42 U.S.C. ยง 1983 proceeds on the Third Amended Complaint ("TAC") against defendants French and Holland. The TAC was drafted by plaintiff's former attorney; however, plaintiff is now proceeding pro se. Defendants have filed a motion for summary judgment (ECF No. 65), and plaintiff has been ordered to file either a supplemental motion pursuant to Fed.R.Civ.P. 56(d) or an opposition to the motion for summary judgment. (ECF No. 72.)

Before the court is plaintiff's motion to file a fourth amended complaint. (ECF No. 73.) Essentially plaintiff requests that this action go forward on his proposed amended complaint rather than the TAC drafted by his former attorney. (ECF No. 75.)

Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be given freely when justice requires. In deciding whether justice requires granting leave to amend, factors to be considered include the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of proposed amendment.

The court has reviewed the proposed Fourth Amended Complaint, which names four defendants: French, Holland, Friend, and Roche. The court concludes that, construed liberally, the proposed complaint states a claim for deliberate indifference to serious medical needs against defendants French and Friend. As Friend is not named in the TAC, amendment is not futile. Moreover, as the proposed amended complaint represents plaintiff's first attempt to state his claims without the involvement of his former attorney, with whom plaintiff disagreed about how to proceed in this action, the court finds that justice requires leave to amend in this instance.

As to defendants' pending motion for summary judgment, the court notes that one defendant - Debbie Holland - is not named in the Fourth Amended Complaint. Thus the court will recommend that she be dismissed from this action. Rather than adjudicate summary judgment separately as to defendant French and new defendant Friend, the court in the interest of judicial efficiency will vacate the motion for summary judgment without prejudice to renewal.

Accordingly, IT IS HEREBY ORDERED THAT:

1. Plaintiff's motion to file a fourth amended complaint (ECF No. 73) is granted;

2. The Clerk of Court shall change the docket of ECF No. 74 to "Fourth Amended Complaint";

3. Service is appropriate for the following additional defendants: J. Friend;

4. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the complaint filed May 19, 2014;

5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:

a. The completed Notice of Submission ...


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