United States District Court, D. Arizona
ORDER
JAMES
F. METCALF, UNITED STATES MAGISTRATE JUDGE
Under
consideration are Plaintiff's Motion to Inform, Clarify
& Request (Doc. 12) and Motion for Leave to File
2nd Amended Complaint (Doc. 13), filed July 10,
2019.
A.
BACKGROUND
On
February 1, 2019, pro se Plaintiff Michael Outley, Jr., who
is confined in the Maricopa County Jail, filed his
original Complaint pursuant to 42 U.S.C.
§ 1983 (Doc. 1). On April 17, 2019, the Court screened
(Doc. 6) that Complaint, dismissing various claims and
defendants, but ordering answers from the remaining
Defendants. Because all of the remaining defendants were
fictitiously named, a deadline for Plaintiff to submit
notices of substitution providing true names was set.
Instead,
on June 20, 2019, Plaintiff filed a “redlined”
version of his First Amended Complaint (Doc.
9), along with a request (Doc. 8) asking the Court to accept
the redlined version. The Court accepted the redlined version
as an amendment as a “matter of course” pursuant
to Federal Rules of Civil Procedure 15(a)(1) (despite the
fact that the redlining was of essentially the entire
complaint), and stayed service pending screening pursuant to
28 U.S.C. § 1915A(a).
On June
27, 2019, the undersigned magistrate judge issued a
Report & Recommendation (Doc. 11)
conducting that screening, and recommending entry of an order
dismissing various claims and defendants, but ordering
answers from the remaining Defendants. That Report and
Recommendation remains pending with District Judge Teilborg.
B.
MOTION TO INFORM, CLARIFY & REQUEST
Plaintiff
has now filed his Motion to Inform, Clarify & Request
(Doc. 12), apparently seeking to avoid screening, leave to
file a second amended complaint, and advanced leave to amend.
Screening
Requirement - Plaintiff references the Report
& Recommendation and expresses his belief that his First
Amended Complaint would have been take as one as a
“matter of course, ” and asks that his Second
Amended Complaint be accepted as a “matter of
course.” Plaintiff is confused about the relationship
between the right to amend as a matter of course and the
screening requirements applicable to Plaintiff's
pleadings.
The
Court did accept his First Amended Complaint as a matter of
course. If it had not, the Court would have evaluated the
factors applicable to granting leave to amend before
proceeding to screening. See Nunes v. Ashcroft, 375
F.3d 805, 808 (9th Cir. 2004) (“In assessing the
propriety of a motion for leave to amend, we consider five
factors: (1) bad faith; (2) undue delay; (3) prejudice to the
opposing party; (4) futility of amendment; and (5) whether
the plaintiff has previously amended his complaint. Futility
alone can justify the denial of a motion for leave to
amend.”).
Despite
the acceptance of the First Amended Complaint as a
“matter of course, ” the Court remained obligated
under 28 U.S.C. § 1915(e)(2) (in forma
pauperis) and 28 U.S.C. § 1915A(a) and 42 U.S.C.
§ 1997e(c) (pro se prisoner/detainee
complaints) to screen the complaint and dismiss any claims
that were frivolous, malicious, fail to adequately state a
claim, or seek monetary relief from a defendant who is
immune. That requirement applies to all complaints by
persons, such as Plaintiff, appearing in forma
pauperis and as pro se prisoners, whether
original, amended as a “matter of course, ” or
amended by leave of the Court.
Indeed,
two of the provisions are not restricted to pleadings at all,
but instead directs that the court shall dismiss “the
case at any time if the court determines, ”
§1915(e)(2), “if the court is satisfied, ”
§ 1997e(c)(1), or if “on its face, ” §
1997e(c)(2), the claim is frivolous, malicious, fails to
state a claim, etc.
Section
1915A(a) goes further and mandates that the Court actively
screen for such claims, and applies that requirement to
“a complaint in a civil action, ” without
restriction on original, amended, etc. Indeed, the only case
found excusing such screening is where the amended complaint
was filed by counsel. See Simmons v. CDCR, 49
F.Supp.3d 700, 701 (E.D. Cal. 2014) (discussing lack of
clarity on requirement for screening of represented prisoner
civil rights complaints, and practice of court not to do so
given lack of practical necessity for construction of counsel
filed complaint and Rule 11 obligations of counsel).
Leave
to File Second Amended Complaint - Plaintiff
seeks leave to file his Second Amended Complaint as a
“matter of course.” Plaintiff proffers no
authority for the Court to do so. Federal Rules of Civil
Procedure 15(a)(1) clearly provides: “party may amend
its pleading once as a matter of
course.” (Emphasis added.) Plaintiff has already done
so. That Plaintiff's amendment may have been ill
conceived or premature does not authorize an exception. With
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