Opinion
2:22-cv-00828-LK-GJL
06-06-2023
MAURICE ANTHONY BROWN, Plaintiff, v. JACI MICHAELIS, et al., Defendants.
ORDER DENYING MOTIONS TO AMEND
Grady J. Leupold United States Magistrate Judge
This matter is before the Court on referral and on Plaintiff's two Motions for leave to file an Amended Complaint. Dkts. 39, 42. Because Plaintiff has not filed a complete proposed Amended Complaint with his latest Motion for leave to amend (Dkt. 42), the Court denies the Motions (Dkts. 39, 42) without prejudice, meaning that Plaintiff can file a new Motion with a complete proposed Amended Complaint as described below.
I. BACKGROUND
In his operative Complaint, Plaintiff alleges a variety of claims related to his medical care while in the custody of the Department of Corrections (“DOC”). Dkt. 13. More specifically, Plaintiff alleges Defendants were deliberately indifferent to his medical needs relating to treatment for his diabetes and a condition with his kidneys. Id.
After the Complaint was served and the Court subsequently entered a Pretrial Scheduling Order (see Dkts. 14, 28), Plaintiff filed a Motion for leave to file an Amended Complaint. Dkt. 31. However, because Plaintiff failed to file a proposed Amended Complaint with his Motion, the Court denied the Motion for leave to amend without prejudice in an Order entered on March 29, 2023. Dkt. 35. The Court also informed Plaintiff he could file a new Motion for leave to amend with a complete proposed Amended Complaint on or before April 28, 2023. See id.
On April 26, 2023, Plaintiff filed a Motion for an extension of time to file his Amended Complaint. Dkt. 37. The Court granted Plaintiff's Motion on May 1, 2023, directing Plaintiff to file an Amended Complaint on or before May 30, 2023. See Dkt. 38. Also on May 1, 2023, Plaintiff filed a Motion for Leave to file an Amended Complaint with an attached proposed Amended Complaint. Dkt. 39. Defendants responded to the Motion, stating they do not oppose the filing of a second Amended Complaint. Dkt. 41.
On May 30, 2023, Plaintiff filed another Motion for leave to file an Amended Complaint. Dkt. 42. In the Motion, Plaintiff seeks to add Defendants and claims for relief, but does not attach a complete proposed Amended Complaint. See id. Rather, the filing seemingly consists of a supplement to the proposed Amended Complaint attached to his earlier Motion. See Dkts. 39, 42.
II. DISCUSSION
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,
(1) Amending as a Matter of Course
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.
(2) Other Amendments
In 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.
Here, the time for filing an Amended Complaint as a matter of course has expired. See Dkt.; Fed.R.Civ.P. 15(a). In response to Plaintiff's first Motion for leave to file an Amended Complaint at issue here, Defendants state they do not oppose Plaintiff's Motion. See Dkt. 41. However, Plaintiff has now filed a second Motion for leave to file an Amended Complaint that adds Defendants and claims, but does not attach a complete proposed Amended Complaint. Dkt. 42. See also Local Civil Rule 15 (“A party who moves for leave to amend a pleading, or who seeks to amend a pleading by stipulation and order, must attach a copy of the proposed amended pleading as an exhibit to the motion or stipulation.”).
Further, as evidenced by his second Motion for leave to file an Amended Complaint (Dkt. 42), Plaintiff seeks to supplement his prior proposed Amended Complaint, but an amended pleading must operate as a complete substitute for the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (citing Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990)). “All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.” Marx v. Loral Corp., 87 F.3d 1049, 105556 (9th Cir. 1996) (quoting King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987)).
Because Plaintiff has failed to file a proposed Amended Complaint with the latest Motion for leave to amend which seeks to add Defendants and claims, the Court denies without prejudice the Motions for leave to file an Amended Complaint (Dkts. 39, 42). Plaintiff may file a new Motion with a complete proposed Amended Complaint, on or before July 6, 2023. Should Plaintiff choose not to file a new Motion for leave to amend with an attached proposed Amended Complaint by July 5, 2023, the case will proceed with the first Amended Complaint (Dkt. 13) as the operative Complaint.
The Court further notes that, in order to amend his first Amended Complaint, Plaintiff must file a complete proposed Amended Complaint, and not a supplement. Plaintiff shall present the Amended Complaint on the form provided by the Court. The Amended Complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it should contain the same case number, and it may not incorporate any part of the original Complaint by reference. The Amended Complaint will act as a complete substitute for the original Complaint and not as a supplement.
III. CONCLUSION
For the reasons set forth above, the Court DENIES without prejudice Plaintiff's Motions for leave to file an Amended Complaint. Dkts. 39, 42. Plaintiff may, however, file a new Motion with a complete proposed Amended Complaint on or before July 6, 2023. If Plaintiff does not file a Motion for leave to amend by July 6, 2023, the case will proceed with Plaintiff's first Amended Complaint (Dkt. 13) as the operative complaint.
The Clerk is directed to send Plaintiff this Order along with the appropriate forms for filing a 42 U.S.C. § 1983 civil rights complaint.