United States District Court, E.D. California
ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT (ECF No.
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
§ 1983. This case proceeds on Plaintiff’s first
amended complaint against Defendant Salvatore for medical
indifference in violation of the Eighth Amendment. (ECF No.
to the scheduling order filed on April 11, 2016, the deadline
to amend the pleadings is October 11, 2016. (ECF No. 36.) On
April 21, 2016, Plaintiff filed a timely motion seeking leave
to amend his complaint “due to recent discovery and
miscalculations of time.” (ECF No. 39.) On May 12,
2016, Defendant filed an opposition. (ECF No. 40.) On May 26,
2016, Plaintiff filed his reply. (ECF No. 41.) The matter is
submitted. Local Rule 230(l).
claims arise out of events that occurred while he was
incarcerated at Wasco State Prison (“WSP”) in
Wasco, California. On or about April 5, 2014, Plaintiff fell
while he was climbing down from the top bunk in his cell. He
claims he lost consciousness and suffered injuries to his
head and neck. On or about April 6, 2014, Plaintiff told
Defendant that he had fallen and suffered injuries and needed
medical attention, explaining that another correctional
officer had already refused to take Plaintiff to the medical
clinic. Defendant also refused to take Plaintiff to the
medical clinic and refused to give Plaintiff a sick call
slip. Plaintiff did not see a doctor until April 10, 2014.
now seeks to file a second amended complaint. He states
generally that he needs to amend due to “recent
discovery” and “miscalculations of time
frames” within his complaint.
may amend its pleading once as a matter of course at any time
before a responsive pleading is served and up to twenty-one
days after service of a responsive pleading. Fed.R.Civ.P.
15(a)(1)(B). 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)(2). Plaintiff has already filed an amended
complaint. (ECF No. 10). Furthermore, a responsive pleading
has already been served. Therefore, Plaintiff may not file a
second amended complaint without leave of court.
Rule 220 requires that an amended complaint be complete in
itself without reference to any prior pleading. As a general
rule, an amended complaint supersedes the original complaint.
See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
Once an amended complaint is filed, the original complaint no
longer serves any function in the case. Therefore, in an
amended complaint, as in an original complaint, each claim
and the involvement of each defendant must be sufficiently
Local Rule 137(c) requires a party to include a copy of the
proposed amended complaint with the moving papers when
seeking leave to amend.
determining whether to grant leave to amend, courts generally
consider four factors: (1) bad faith, (2) undue delay, (3)
prejudice to the opposing party, and (4) futility of
amendment. In re Korean Airlines Co., Ltd., 642 F.3d
685, 701 (9th Cir. 2011) (citing Kaplan v. Rose, 49
F.3d 1363, 1370 (9th Cir. 1994)) (quotation marks omitted);
also Foman v. Davis, 371 U.S. 178, 182 (1962);
Waldrip v. Hall, 548 F.3d, 729, 732 (9th Cir. 2008);
AmerisourceBergen Corp. v. Dialysis West, Inc., 465
F.3d 946, 951 (9th Cir. 2006); Eminence Capital,
LLC, 316 F.3d at 1052.
regards to undue delay, “''[w]here the party
seeking amendment knows or should know of the facts upon
which the proposed amendment is based but fails to include
them in the original complaint, the motion to amend may be
denied.”” E.E.O.C. v. Boeing, Co., 843
F.2d 1213, 1222 (9th Cir. 1988) (quoting Jordan v. County
of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982),
vacated on other grounds, 459 U.S. 810 (1982)).
However, 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
evaluating whether a proposed amendment is futile, the Court
must determine whether the amendment would withstand a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6),
and in making this evaluation, the Court is confined to
review of the proposed amended pleading. Nordyke v.
King, 644 F.3d 776, 788 n.12 (9th Cir. 2011) (citing
Miller v. Rykoff-Sexton, Inc., 84 ...