Davey v. Pierce County Council

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 JUSTIN ALLEN DAVEY, 9 Plaintiff, Case No. C21-05068-JCC-SKV 10 v. ORDER DENYING MOTION FOR LEAVE TO FILE AMENDED 11 PIERCE COUNTY COUNCIL, et al., COMPLAINT WITHOUT PREJUDICE AND WTH LEAVE TO RE-FILE 12 Defendant. 13

14 This is a 42 U.S.C. § 1983 prisoner civil rights action. Currently pending before the 15 Court is Plaintiff’s motion for leave to file an amended complaint pursuant to Fed. R. Civ. P. 16 15(a)(2). Dkt. 50. Plaintiff’s motion appears to indicate, in part, that he had been unable to file 17 an amended complaint previously due to inadequate access to the law library while he was 18 incarcerated at Washington Correction Center. Id. 19 Federal Rule of Civil Procedure 15(a), provides: 20 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 21 (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service 22 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 23 opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. 1 Fed. R. Civ. P. 15. Although this is a liberal standard, leave to amend is discretionary and courts 2 have identified a number of factors to consider when determining whether leave is appropriate. 3 See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962). These factors include undue prejudice, 4 futility, and undue delay. Id. 5 Because it has been more than 21 days since Defendants filed their motion to dismiss 6 pursuant to Fed. R. Civ. P. 12(b)(6), Plaintiff may no longer amend as a matter of course and 7 may do so only with Defendant’s written consent or the Court’s leave. Fed. R. Civ. P. 15(a); see 8 Dkt. 33. 9 Local Civil Rule (LCR) 15 also requires a party who is seeking to amend a pleading to 10 attach the proposed amended pleading as an exhibit to the motion. LCR 15. The party must also 11 indicate how the proposed amended pleading differs from the original pleading by highlighting 12 the text that is added and striking through part that is deleted. Id. This rule allows the Court and 13 the parties to see the proposed amended complaint and evaluate whether the leave to amend is 14 appropriate. 15 Here, Plaintiff seeks leave of the Court to file an amended complaint but fails to include a 16 copy of the proposed amended complaint with his motion. Dkt. 50. As such, Defendants would 17 be unable to properly respond to Plaintiff’s motion and the Court is unable to properly consider 18 the motion and determine whether amendment is appropriate. 19 Accordingly, it is hereby ORDERED: 20 (1) Plaintiff’s motion for leave to file an amended complaint, Dkt. 50, is DENIED without 21 prejudice as he fails to include a copy of his proposed amended complaint with his 22 motion pursuant to LCR 15. Plaintiff is granted leave to re-file his motion for leave to 23 amend, but he must include a proposed second amended complaint with his motion 1 so that the Defendants and properly respond and the Court can properly consider whether 2 amendment is appropriate. 3 (2) The Court also notes that it is unclear from Plaintiff’s motion whether he is aware that he 4 did, in fact, previously file an amended complaint, Dkt. 26, which is now considered the

5 operative complaint in this action. For clarification and efficiency purposes, the Clerk 6 is directed to send Plaintiff a copy of his amended complaint, Dkt. 26, a copy of the 7 docket sheet in this case, and a copy of the Court’s form 42 U.S.C. § 1983 civil rights 8 complaint. These documents will enable Plaintiff to review his current amended 9 complaint and determine whether he believes it is necessary to re-file his motion for leave 10 to amend his complaint further, or whether his current amended complaint contains all 11 causes of action, facts and arguments he intends to pursue in this action. Plaintiff is 12 advised that if he moves again for leave to amend his complaint and the motion is 13 granted, his proposed second amended complaint will act as a complete substitute for the 14 original complaint, and not as a supplement. Therefore, the proposed second amended

15 complaint must be complete in itself and contain all causes of action, facts, and argument 16 Plaintiff intends to pursue in this action. Any facts and causes of action alleged in the 17 original complaint that are not alleged in the second amended complaint are waived. 18 (3) The Clerk is directed to send copies of this order to the parties and to the Honorable John 19 C. Coughenour. 20 Dated this 14th day of December, 2021. 21 A 22 S. KATE VAUGHAN 23 United States Magistrate Judge