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Brummett v. Lopez

United States District Court, Eastern District of California
Jun 23, 2022
1:21-cv-00086-DAD-BAM (PC) (E.D. Cal. Jun. 23, 2022)

Opinion

1:21-cv-00086-DAD-BAM (PC)

06-23-2022

MELVIN RAY BRUMMETT, JR., Plaintiff, v. LOPEZ, et al., Defendants.


ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT (ECF NO. 42) ORDER DIRECTING CLERK OF COURT TO FILE LODGED SECOND AMENDED COMPLAINT (ECF NO. 43) ORDER FOR DEFENDANT TO FILE RESPONSE TO SECOND AMENDED COMPLAINT WITHIN TWENTY-ONE (21) DAYS

BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

I. Introduction

Plaintiff Melvin Ray Brummett, Jr. (“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 proceeds against Defendant Martinez for retaliation in violation of the First Amendment and deliberate indifference to risk of harm in violation of the Eighth Amendment.

Pursuant to the Court's April 5, 2022 order granting Defendant's motion to modify the discovery and scheduling order, the deadline for filing all stipulated amendments or motions to amend was extended to September 1, 2022. (ECF No. 39.) On May 31, 2022, Plaintiff filed a motion for leave to amend the complaint and lodged a proposed second amended complaint. (ECF Nos. 42, 43.) Defendant did not file a response, and the deadline to do so has expired. The motion is deemed submitted. Local Rule 230(1).

II. Motion to Amend

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. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation and quotation omitted). However, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” Id.

In his motion, Plaintiff states that his request is timely pursuant to the amended deadline to file motions to amend pleadings, and he has not previously requested leave to amend his complaint. (ECF No. 42.) Plaintiff has only amended due to the Court's screening order. Plaintiff states that when he amended his complaint following the Court's screening order, he failed to supply a proper timeline of events. Plaintiff further submitted an incorrect date in his amended complaint at page 5, showing May 18, 2020 when it should have been May 24, 2020. Plaintiff states that his request to amend is not for undue delay, bad faith, or dilatory motives and should therefore be granted. (Id.)

Defendant's failure to file an opposition or otherwise respond to Plaintiff's motion to amend and proposed second amended complaint is deemed a waiver of any opposition to the granting of the motion and the Court therefore considers the motion unopposed. Local Rule 230(1).

In considering the relevant factors, the Court finds no evidence of bad faith, undue delay in litigation, or futility. Further, as the motion is unopposed and was filed well before the extended deadline-an extension requested by Defendant-the Court finds no evidence of prejudice to Defendant.

The Court has reviewed the second amended complaint and notes that Plaintiff names only Defendant Martinez as a defendant, and he has corrected the dates specified in his motion to amend. To the extent the second amended complaint contains allegations related to claims or defendants already dismissed by the District Judge's September 23, 2021 order adopting findings and recommendations, the Court clarifies that the only claims proceeding are the claims against Defendant Martinez for retaliation in violation of the First Amendment and deliberate indifference to risk of harm in violation of the Eighth Amendment.

III. Order

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for leave to amend complaint, (ECF No. 42), is GRANTED;
2. The Clerk of the Court is directed to file the second amended complaint lodged on May 31, 2022, (ECF No. 43), as the operative complaint in this action;
3. Defendant Martinez is DIRECTED to file a response to the second amended complaint within twenty-one (21) days from the date of service of this order; and
4. All other deadlines set by the Court's April 5, 2022 order granting Defendant's motion to modify the discovery and scheduling order, (ECF No. 39), remain in place.

IT IS SO ORDERED.


Summaries of

Brummett v. Lopez

United States District Court, Eastern District of California
Jun 23, 2022
1:21-cv-00086-DAD-BAM (PC) (E.D. Cal. Jun. 23, 2022)
Case details for

Brummett v. Lopez

Case Details

Full title:MELVIN RAY BRUMMETT, JR., Plaintiff, v. LOPEZ, et al., Defendants.

Court:United States District Court, Eastern District of California

Date published: Jun 23, 2022

Citations

1:21-cv-00086-DAD-BAM (PC) (E.D. Cal. Jun. 23, 2022)