United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Petitioner's Motion for
Reconsideration. (Doc. 24.)
Anthony Salazar (“Petitioner”) filed a Section
2254 action on April 14, 2017,  challenging his confinement in an
Arizona state prison, following a guilty plea made in
Maricopa County Superior Court to one count of sexual conduct
with a minor under fifteen and two counts of attempted
molestation of a child. (Doc. 1.) On May 26, this Court
referred this matter to Magistrate Judge James F. Metcalf
(“Magistrate Judge”) and ordered Respondents to
answer within forty days after Petitioner served them. (Doc.
5 at 4.)
5, the Magistrate Judge set an initial schedule for the case,
requiring all motions to amend to be filed within
twenty-eight days of Respondents serving their Answer. (Doc.
8 at 1.) The same day, Petitioner filed a Petition for Leave
to File a Supplemental Brief to Include Memorandum of Points
and Authorities, (Doc. 9), which the Magistrate Judge denied
without prejudice due to Petitioner's failure to lodge
the proposed Memorandum with the Court, (Doc. 10.)
19, Petitioner moved to amend his Petition to include a
memorandum of points and authorities, (Doc. 11), but failed
to attach his proposed amendment, prompting the Magistrate
Judge to deny Petitioner's request, (Doc. 12.)
5, Respondents filed and served their Answer. (Doc. 13.)
Subsequently, on July 11, Petitioner moved for an extension
of time to amend. (Doc. 15.) The Magistrate Judge granted
this motion and provided that Petitioner had until August 21
“to file any motions to amend, motions to supplement,
motions to stay, motions for evidentiary hearing, motions to
expand the record, and the like, seeking to expand the
petition, or the record herein.” (Doc. 16.)
August 9, Petitioner replied to Respondents' Answer,
(Doc. 19), and filed his Amended Petition, (Doc. 20.) The
next day, the Magistrate Judge sua sponte struck the
Amended Petition, noting that the time to amend as a matter
of course expired on July 24 and Petitioner had not obtained
either Respondents' written consent or the Court's
leave. (Doc. 22.) On August 28, Petitioner filed a Motion for
Reconsideration of the Magistrate Judge's decision to
strike the Amended Petition, (Doc. 24), which this Court
treats as an appeal from the Magistrate Judge.
nondispositive matters, a district judge, upon a party's
timely objection, must review a magistrate judge's order
and “modify and set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed.R.Civ.P.
72(a); see also Rule 12 of the Rules Governing
Section 2254 Cases (holding that the Federal Rules of Civil
Procedure apply to Section 2254 proceedings to the extent
that they do not conflict with the Section 2254 Rules or
statutory provisions). To determine whether a magistrate
judge's denial of a motion is dispositive, a court
“examine[s] whether the denial . . . effectively
disposes of a claim or defense or precludes the ultimate
relief sought.” Bastidas v. Chappell, 791 F.3d
1155, 1164 (9th Cir. 2015); see also 28 U.S.C.
§ 636(b)(1)(A) (2012).
party may amend its pleading once as a matter of course
within: (A) 21 days after serving it; or (B) if the pleading
is one to which a responsive pleading is required, 21 days
after the service of a responsive pleading.”
Fed.R.Civ.P. 15(a)(1). Otherwise, one may only amend
“with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). “The
Court should freely give leave when justice so
the District of Arizona's Local Rules of Civil Procedure
(“Local Rules”), a motion for leave to amend must
include an attached “copy of the proposed amended
pleading as an exhibit to the motion, which must indicate in
what respect it differs from the pleading which it amends, by
bracketing or striking through the text to be deleted and
underlining the text to be added.” LRCiv 15.1. The
Local Rules operate with the “force of law” and
bind the Court and the parties. Prof'l Programs Grp.
v. Dep't of Commerce, 29 F.3d 1349, 1353 (9th Cir.
1994) (quoting Martel v. Cty. of L.A., 21 F.3d 940,
946-47 (9th Cir. 1994)). Although courts must construe
pro se filings liberally, Woods v. Carey,
525 F.3d 886, 890 (9th Cir. 2008), pro se litigants
are still bound by the Local Rules, LRCiv 83.3(c)(1);
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
(per curiam) (upholding dismissal of pro se
prisoner's action where the prisoner failed to comply
with a Nevada local rule). A departure from the Local Rules
is only justified where the harm to the opposing party is
“so slight and unimportant that the sensible treatment
is to overlook [it].” Prof'l Programs
Grp., 29 F.3d at 1353 (quoting Martel, 21 F.3d
at 947 n.4).
in the District of Arizona routinely deny “motions for
leave to amend for failure to comply with” Local Rule
15.1(a). Eldridge v. Schroeder, No.
CV-14-01325-PHX-DGC (ESW), 2016 WL 354868, at *2 (D. Ariz.
Jan. 28, 2016) (compiling cases), adopted by 2016 WL
1408128 (D. Ariz. Apr. 11, 2016); see Huminski v.
Heretia, No. CV 11-0896-PHX-DGC, 2011 WL 2910536, at *1
(D. Ariz. July 18, 2011) (denying pro se
plaintiff's leave to amend for failure to comply with
Local Rule 15.1); see also Young v. Nooth, 539 Fed.
App'x 710, 711 (9th Cir. 2013) (finding no abuse of
discretion in district court's refusal to grant leave to
amend to a pro se prisoner who failed to comply with
Oregon's corollary to Local Rule 15.1).