Opinion
No. CIV S-05-1279 RRB GGH P.
June 27, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's May 15, 2007, motion for leave to file an amended complaint. On May 29, 2007, defendants filed an opposition. For the following reasons, this motion is denied.
The Federal Rules of Civil Procedure provide that a party may amend his or pleading "once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a). On June 7, 2006, defendants filed an answer to the amended complaint. Accordingly, leave of court is required in order for plaintiff to file an amended complaint. Although Rule 15(a) requires that leave "be freely given when justice so requires[,]" it is within the court's discretion to deny leave when there has been "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962).
This action is proceeding on the amended complaint filed December 7, 2005, as to defendants Schwarzenneggger, Harmon and Daly. Plaintiff alleges that defendants have promoted an illegal policy of denying parole to prisoners serving life sentences. Plaintiff seeks to amend his complaint to include a claim that his parole suitability hearing, scheduled for June 13, 2007, will not be conducted.
In addition, allowing plaintiff to amend his complaint would significantly delay resolution of this action. Defendants' summary judgment motion, filed February 9, 2007, is submitted for decision. The court would have to vacate defendants' motion and reschedule this action were it to allow plaintiff to amend his complaint. This delay would prejudice both defendants and the court. Because the proposed new claim is based on different facts and theories than the claim on which this action is proceeding, it makes more sense for plaintiff to file a new action. For these reasons, plaintiff's motion to amend is denied.
Accordingly, IT IS HEREBY ORDERED that plaintiff's May 16, 2007, motion to file an amended complaint is denied.