Whatley v. Valdovinos

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Reginald Whatley, Case No.: 18-cv-02761-CAB-BGS

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. AMEND

14 G. Valdovinos et al., [ECF NO. 21] 15 Defendants. 16 17 18 Plaintiff Reginald Whatley is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. 20 Plaintiff filed a Motion to Amend nunc pro tunc to September 9, 2019 in which he seeks 21 to add defendants and claims to his lawsuit. (ECF No. 21.) However, Plaintiff did not 22 attach a copy of his proposed amended complaint. (Id.) Defendant Valdovinos filed a 23 Notice of Non-Opposition on September 25, 2019 stating that “Defendant does not oppose 24 Plaintiff’s Motion to Amend Complaint.” (ECF No. 24.) 25 Federal Rule of Civil Procedure 15 states that a “party may amend its pleading once 26 as a matter of course” twenty-one days after serving it or “21 days after service of a 27 responsive pleading or 21 days after service of a motion under [Federal Rule of Civil 28 Procedure] (b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other 1 cases, a party may amend its pleading only with the opposing party’s written consent or 2 ||the court’s leave.” Id. at (a)(2). 3 Leave to amend should be “freely give[n]” when “justice so requires.” Jd. “Courts 4 ||may decline to grant leave to amend only if there is strong evidence of undue delay, bad 5 || faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 6 ||amendments previously allowed, undue prejudice to the opposing party... or futility of 7 ||amendment[.]” Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 8 || (9th Cir. 2013) (citation and internal quotation marks omitted). 9 The Court finds none of the abovementioned applicable factors present in □□□□□□□□□□ 10 |/request for leave to amend. Thus, and in light of Defendant’s non-opposition, □□□□□□□□□□□ 11 Motion to Amend (ECF No. 21) is GRANTED. 12 Plaintiff must file his amended complaint on or before November 8, 2019. 13 ||Defendant will file a responsive pleading in accordance with the applicable rules. 14 || Plaintiff's amended complaint must be complete in itself without reference to his original 15 || pleading. Defendants not named and any claims not re-alleged in the amended complaint 16 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 17 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 18 || supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 19 || (noting that claims dismissed with leave to amend which are not re-alleged in an amended 20 || pleading may be “considered waived if not repled.”). 21 IT IS SO ORDERED. 22 Dated: October 21, 2019 pEabal 23 on. Bernard G. Skomal 54 United States Magistrate Judge 25 26 27 28