Opinion
CASE NO. 1:07-cv-00062-OWW-SMS PC.
May 8, 2008
Plaintiff Derrick Lee Billups ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed January 12, 2007, against Defendants Ramirez, J. Hiller, and Collier for use of excessive physical force, in violation of the Eighth Amendment. On February 11, 2008, Plaintiff filed a motion seeking leave to amend to add Greenly and D. A. Hiller as defendants, and on March 12, 2008, Plaintiff filed an amended motion seeking leave to amend to add only Greenly as a defendant. In the amended motion, Plaintiff stated that he lacks proof against D. A. Hiller at this time. Defendants did not file a response to either motion.
Defendant Sebold was dismissed with prejudice pursuant to the parties' stipulation of voluntary dismissal. (Doc. 20.)
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.'" AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) (quoting Fed.R.Civ.P. 15(a)).
The Court has reviewed Plaintiff's motions and his complaint, and shall grant leave to amend. Plaintiff original complaint, upon which this action is proceeding, sets forth factual allegations sufficient to state a claim against Greenly for use of excessive force. (Doc. 1, court record pgs. 8 9.) The action is not currently proceeding against Greenly only because Plaintiff did not identify Greenly as a defendant and assert a claim against her, as he did with the other defendants. (Id., c. r. pgs. 10 11.) Because the complaint already sets forth sufficient facts against Greenly, Plaintiff does not need to file an amended complaint. By separate order, the Court will direct the Marshal to initiate service of process on Defendant Greenly.
The pretrial dispositive motion deadline is currently set for August 7, 2008. That deadline shall be vacated pending completion of service of process as to Defendant Greenly.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's motions seeking leave to amend, filed February 11, 2008 and March 12, 2008, are GRANTED and this action shall now proceed against Greenly as a defendant;
2. In light of the sufficiency of the allegations against Greenly in the original complaint, the Clerk's Office shall add Greenly as a defendant in this action; and
3. The pretrial dispositive motion deadline of August 7, 2008 is VACATED pending completion of service on Defendant Greenly.
IT IS SO ORDERED.