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5 UNITED STATES DISTRICT COURT 6 DISTRICT OF ARIZONA
7 Michael Dewayne Outley, Jr., Plaintiff CV-19-0724-PHX-JAT (JFM) 8 -vs- Paul Penzone, et al., 9 Defendants. Order
10 Under consideration are Plaintiff's Motion to Inform, Clarify & Request (Doc. 12) 11 and Motion for Leave to File 2nd Amended Complaint (Doc. 13), filed July 10, 2019. 12
13 A. BACKGROUND 14 On February 1, 2019, pro se Plaintiff Michael Outley, Jr., who is confined in the 15 Maricopa County Jail, filed his original Complaint pursuant to 42 U.S.C. § 1983 (Doc. 16 1). On April 17, 2019, the Court screened (Doc. 6) that Complaint, dismissing various 17 claims and defendants, but ordering answers from the remaining Defendants. Because all 18 of the remaining defendants were fictitiously named, a deadline for Plaintiff to submit 19 notices of substitution providing true names was set. 20 Instead, on June 20, 2019, Plaintiff filed a “redlined” version of his First Amended 21 Complaint (Doc. 9), along with a request (Doc. 8) asking the Court to accept the redlined 22 version. The Court accepted the redlined version as an amendment as a “matter of course” 23 pursuant to Federal Rules of Civil Procedure 15(a)(1) (despite the fact that the redlining 24 was of essentially the entire complaint), and stayed service pending screening pursuant to 25 28 U.S.C. § 1915A(a). 26 On June 27, 2019, the undersigned magistrate judge issued a Report & 27 Recommendation (Doc. 11) conducting that screening, and recommending entry of an 1 Defendants. That Report and Recommendation remains pending with District Judge 2 Teilborg. 3 B. MOTION TO INFORM, CLARIFY & REQUEST 4 Plaintiff has now filed his Motion to Inform, Clarify & Request (Doc. 12), 5 apparently seeking to avoid screening, leave to file a second amended complaint, and 6 advanced leave to amend. 7 Screening Requirement - Plaintiff references the Report & Recommendation and 8 expresses his belief that his First Amended Complaint would have been take as one as a 9 “matter of course,” and asks that his Second Amended Complaint be accepted as a “matter 10 of course.” Plaintiff is confused about the relationship between the right to amend as a 11 matter of course and the screening requirements applicable to Plaintiff’s pleadings. 12 The Court did accept his First Amended Complaint as a matter of course. If it had 13 not, the Court would have evaluated the factors applicable to granting leave to amend 14 before proceeding to screening. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) 15 (“In assessing the propriety of a motion for leave to amend, we consider five factors: (1) 16 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; 17 and (5) whether the plaintiff has previously amended his complaint. Futility alone can 18 justify the denial of a motion for leave to amend.”). 19 Despite the acceptance of the First Amended Complaint as a “matter of course,” 20 the Court remained obligated under 28 U.S.C. § 1915(e)(2) (in forma pauperis) and 28 21 U.S.C. § 1915A(a) and 42 U.S.C. § 1997e(c) (pro se prisoner/detainee complaints) to 22 screen the complaint and dismiss any claims that were frivolous, malicious, fail to 23 adequately state a claim, or seek monetary relief from a defendant who is immune. That 24 requirement applies to all complaints by persons, such as Plaintiff, appearing in forma 25 pauperis and as pro se prisoners, whether original, amended as a “matter of course,” or 26 amended by leave of the Court. 27 1 that the court shall dismiss “the case at any time if the court determines,” §1915(e)(2), “if 2 the court is satisfied,” § 1997e(c)(1), or if “on its face,” § 1997e(c)(2), the claim is 3 frivolous, malicious, fails to state a claim, etc. 4 Section 1915A(a) goes further and mandates that the Court actively screen for such 5 claims, and applies that requirement to “a complaint in a civil action,” without restriction 6 on original, amended, etc. Indeed, the only case found excusing such screening is where 7 the amended complaint was filed by counsel. See Simmons v. CDCR, 49 F. Supp. 3d 700, 8 701 (E.D. Cal. 2014) (discussing lack of clarity on requirement for screening of 9 represented prisoner civil rights complaints, and practice of court not to do so given lack 10 of practical necessity for construction of counsel filed complaint and Rule 11 obligations 11 of counsel). 12 Leave to File Second Amended Complaint – Plaintiff seeks leave to file his 13 Second Amended Complaint as a “matter of course.” Plaintiff proffers no authority for 14 the Court to do so. Federal Rules of Civil Procedure 15(a)(1) clearly provides: “party may 15 amend its pleading once as a matter of course.” (Emphasis added.) Plaintiff has already 16 done so. That Plaintiff’s amendment may have been ill conceived or premature does not 17 authorize an exception. With regard to the merits of the request for leave to amend, the 18 Court will address it in connection with the separate Motion to Amend (Doc. 13). 19 Future Leave to Amend – Plaintiff seeks advance leave to amend to assert various 20 defamation claims against certain named persons. The Court does not grant such advanced 21 leave for two reasons. First, evaluating the factors governing a grant of leave requires 22 evaluation of the amendment being made, and thus generally requires presentation of the 23 proposed amendment. Second, such a request is not in compliance with Local Rule of 24 Civil Procedure 15.1 which mandates provision of redlined amended pleadings to assist 25 the Court and parties in evaluating amended pleadings. 26 Moreover, Plaintiff seeks leave without limitation in time. At some point, resetting 27 a case by amended pleadings and adding claims and defendants becomes prejudicial to the 1 party from filing a separate action to pursue such claims, but it does prevent disruption of 2 the existing action.) 3 C. MOTION TO FILE SECOND AMENDED COMPLAINT 4 In his Motion for Leave to File 2nd Amended Complaint (Doc. 13), seeking leave 5 to file his lodged Second Amended (Doc. 14), to adequately state a state law claim of 6 defamation, clarify and cure deficiencies in his earlier pleadings. 7 Leave to amend is to be “freely” given. Fed. R. Civ. Proc. 15(a)(2). Applying the 8 relevant factors, see Nunes, 375 F.3d at 808, the Court finds no reason to deny leave. 9 There appears no reason to conclude that Plaintiff is proceeding in bad faith. He has not 10 unduly delayed, but has promptly sought to cure purported deficiencies, etc. Given the 11 short time elapsed, there appears no reason to conclude prejudice will result to defendants. 12 Although the Court has not completed screening, there appears no reason to belief the 13 amendment is futile. Although Plaintiff has previously amended his complaint, this is only 14 his second amendment, and is a prompt response to cure claims dismissed on screening. 15 Accordingly, the lodged Second Amended Complaint will be filed.
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5 UNITED STATES DISTRICT COURT 6 DISTRICT OF ARIZONA
7 Michael Dewayne Outley, Jr., Plaintiff CV-19-0724-PHX-JAT (JFM) 8 -vs- Paul Penzone, et al., 9 Defendants. Order
10 Under consideration are Plaintiff's Motion to Inform, Clarify & Request (Doc. 12) 11 and Motion for Leave to File 2nd Amended Complaint (Doc. 13), filed July 10, 2019. 12
13 A. BACKGROUND 14 On February 1, 2019, pro se Plaintiff Michael Outley, Jr., who is confined in the 15 Maricopa County Jail, filed his original Complaint pursuant to 42 U.S.C. § 1983 (Doc. 16 1). On April 17, 2019, the Court screened (Doc. 6) that Complaint, dismissing various 17 claims and defendants, but ordering answers from the remaining Defendants. Because all 18 of the remaining defendants were fictitiously named, a deadline for Plaintiff to submit 19 notices of substitution providing true names was set. 20 Instead, on June 20, 2019, Plaintiff filed a “redlined” version of his First Amended 21 Complaint (Doc. 9), along with a request (Doc. 8) asking the Court to accept the redlined 22 version. The Court accepted the redlined version as an amendment as a “matter of course” 23 pursuant to Federal Rules of Civil Procedure 15(a)(1) (despite the fact that the redlining 24 was of essentially the entire complaint), and stayed service pending screening pursuant to 25 28 U.S.C. § 1915A(a). 26 On June 27, 2019, the undersigned magistrate judge issued a Report & 27 Recommendation (Doc. 11) conducting that screening, and recommending entry of an 1 Defendants. That Report and Recommendation remains pending with District Judge 2 Teilborg. 3 B. MOTION TO INFORM, CLARIFY & REQUEST 4 Plaintiff has now filed his Motion to Inform, Clarify & Request (Doc. 12), 5 apparently seeking to avoid screening, leave to file a second amended complaint, and 6 advanced leave to amend. 7 Screening Requirement - Plaintiff references the Report & Recommendation and 8 expresses his belief that his First Amended Complaint would have been take as one as a 9 “matter of course,” and asks that his Second Amended Complaint be accepted as a “matter 10 of course.” Plaintiff is confused about the relationship between the right to amend as a 11 matter of course and the screening requirements applicable to Plaintiff’s pleadings. 12 The Court did accept his First Amended Complaint as a matter of course. If it had 13 not, the Court would have evaluated the factors applicable to granting leave to amend 14 before proceeding to screening. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) 15 (“In assessing the propriety of a motion for leave to amend, we consider five factors: (1) 16 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; 17 and (5) whether the plaintiff has previously amended his complaint. Futility alone can 18 justify the denial of a motion for leave to amend.”). 19 Despite the acceptance of the First Amended Complaint as a “matter of course,” 20 the Court remained obligated under 28 U.S.C. § 1915(e)(2) (in forma pauperis) and 28 21 U.S.C. § 1915A(a) and 42 U.S.C. § 1997e(c) (pro se prisoner/detainee complaints) to 22 screen the complaint and dismiss any claims that were frivolous, malicious, fail to 23 adequately state a claim, or seek monetary relief from a defendant who is immune. That 24 requirement applies to all complaints by persons, such as Plaintiff, appearing in forma 25 pauperis and as pro se prisoners, whether original, amended as a “matter of course,” or 26 amended by leave of the Court. 27 1 that the court shall dismiss “the case at any time if the court determines,” §1915(e)(2), “if 2 the court is satisfied,” § 1997e(c)(1), or if “on its face,” § 1997e(c)(2), the claim is 3 frivolous, malicious, fails to state a claim, etc. 4 Section 1915A(a) goes further and mandates that the Court actively screen for such 5 claims, and applies that requirement to “a complaint in a civil action,” without restriction 6 on original, amended, etc. Indeed, the only case found excusing such screening is where 7 the amended complaint was filed by counsel. See Simmons v. CDCR, 49 F. Supp. 3d 700, 8 701 (E.D. Cal. 2014) (discussing lack of clarity on requirement for screening of 9 represented prisoner civil rights complaints, and practice of court not to do so given lack 10 of practical necessity for construction of counsel filed complaint and Rule 11 obligations 11 of counsel). 12 Leave to File Second Amended Complaint – Plaintiff seeks leave to file his 13 Second Amended Complaint as a “matter of course.” Plaintiff proffers no authority for 14 the Court to do so. Federal Rules of Civil Procedure 15(a)(1) clearly provides: “party may 15 amend its pleading once as a matter of course.” (Emphasis added.) Plaintiff has already 16 done so. That Plaintiff’s amendment may have been ill conceived or premature does not 17 authorize an exception. With regard to the merits of the request for leave to amend, the 18 Court will address it in connection with the separate Motion to Amend (Doc. 13). 19 Future Leave to Amend – Plaintiff seeks advance leave to amend to assert various 20 defamation claims against certain named persons. The Court does not grant such advanced 21 leave for two reasons. First, evaluating the factors governing a grant of leave requires 22 evaluation of the amendment being made, and thus generally requires presentation of the 23 proposed amendment. Second, such a request is not in compliance with Local Rule of 24 Civil Procedure 15.1 which mandates provision of redlined amended pleadings to assist 25 the Court and parties in evaluating amended pleadings. 26 Moreover, Plaintiff seeks leave without limitation in time. At some point, resetting 27 a case by amended pleadings and adding claims and defendants becomes prejudicial to the 1 party from filing a separate action to pursue such claims, but it does prevent disruption of 2 the existing action.) 3 C. MOTION TO FILE SECOND AMENDED COMPLAINT 4 In his Motion for Leave to File 2nd Amended Complaint (Doc. 13), seeking leave 5 to file his lodged Second Amended (Doc. 14), to adequately state a state law claim of 6 defamation, clarify and cure deficiencies in his earlier pleadings. 7 Leave to amend is to be “freely” given. Fed. R. Civ. Proc. 15(a)(2). Applying the 8 relevant factors, see Nunes, 375 F.3d at 808, the Court finds no reason to deny leave. 9 There appears no reason to conclude that Plaintiff is proceeding in bad faith. He has not 10 unduly delayed, but has promptly sought to cure purported deficiencies, etc. Given the 11 short time elapsed, there appears no reason to conclude prejudice will result to defendants. 12 Although the Court has not completed screening, there appears no reason to belief the 13 amendment is futile. Although Plaintiff has previously amended his complaint, this is only 14 his second amendment, and is a prompt response to cure claims dismissed on screening. 15 Accordingly, the lodged Second Amended Complaint will be filed. The Court will 16 proceed, by separate order or report & recommendation, to screen that complaint, and to 17 address service. In the meantime, service will remain stayed. 18
19 D. REPORT & RECOMMENDATION AND OBJECTION 20 In light of the filing of the Second Amended Complaint, the current Report & 21 Recommendation is moot, and will be withdrawn. 22 In his Motion for Leave to File 2nd Amended Complaint (Doc. 13), Plaintiff asks 23 that his motion “be considered as a written objection to the recommendations on the first 24 amended complaint. (Doc. 13 at 3.) In light of the withdrawal of the Report & 25 Recommendation, this request is moot. 26
27 IT IS THEREFORE ORDERED Plaintiff's Motion to Inform, Clarify & Request, l filed July 10, 2019 (Doc. 12) is DENIED. 2 IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File □□ 3 || Amended Complaint, filed July 10, 2019 (Doc. 13) is GRANTED to the extent of the 4 || relief provided herein. 5 IT IS FURTHER ORDERED that Plaintiff's proposed Second Amended 6 || Complaint, lodged July 10, 2019 (Doc. 14) be FILED. 7 IT IS FURTHER ORDERED that the Report & Recommendation filed June 27, 8 || 2019 (Doc. 11) is WITHDRAWN. 9 IT IS FURTHER ORDERED that service in this matter remain STAYED 10 || pending screening of the Second Amended Complaint. 11 12 Dated: July 15, 2019 AL ita 13 |f 1207242120 0nder 1907 12 on Motion to inform docx United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28