United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO AMEND
Richard Creatura, United States Magistrate Judge.
U.S.C. § 1983 civil rights matter has been referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C.
§§ 636 (b)(1)(A) and (B) and Local Magistrate Judge
Rules MJR 1, MJR 3, and MJR 4.
requests that he be allowed to add a conspiracy claim to his
amended complaint, and he has filed a separate supplement
alleging further unconstitutional behavior by defendants. The
Court interprets these collectively as a motion for leave to
file an amended complaint. Because the Court believes it is
in the interests of justice to allow plaintiff to raise these
additional claims, plaintiff's motion for leave to amend
filed his original complaint in August of 2017. Dkt. 1.
Pursuant to an order from the Court, he filed an amended
complaint, alleging violations of the 1st, 5th, 8th, and 14th
Amendments when defendants allegedly housed him in
unconstitutional conditions and blocked his access to legal
materials. Dkt. 13. Subsequently, plaintiff filed a motion to
add a conspiracy claim under 42 U.S.C. § 1985. Dkt. 16.
He later filed a “supplement” to his amended
complaint, explaining the alleged injury he suffered when
defendants allegedly blocked his access to the courts. Dkt.
18. The Court interprets these two filings collectively as a
motion to amend his current complaint.
requests that the Court allow him to add a conspiracy claim
to his amended complaint and has also filed a separate
supplement to his complaint. As a matter of course, a party
may amend its pleading once within 21 days of serving it or,
if it is a pleading requires a response, within 21 days after
service of the response. Fed. R. Civ. Proc. 15(a)(1). In all
other cases, “a party may amend its pleading only with
. . . the court's leave.” Id. (a)(2).
“The court should freely give leave when justice so
requires.” Id. The Court interprets
plaintiff's motion to add the conspiracy claim as a
motion for leave to file a second amended complaint.
the Court believes the interests of justice dictate that
plaintiff have the opportunity to file an amended complaint.
Accompanying plaintiff's motion is a memorandum
explaining an alleged conspiracy depriving plaintiff of
access to the courts and housing him in harsh, allegedly
unconstitutional conditions. Dkt. 16. In a separate document,
he further alleges that defendants have inhibited his ability
to access the courts by refusing to provide him writing
materials, apparently causing him to miss several deadlines.
Dkt. 18. The Court notes that plaintiff has neglected to
include an explicit showing that the defendants reached a
unity of purpose or common design for his conspiracy
allegations. Gilbrook v. City of Westminster, 177
F.3d 839, 856 (9th Cit. 1999). However, the Court finds that
it would not serve the ends of justice to deny
plaintiff's request to amend his complaint. Therefore,
plaintiff's motion (Dkt. 16) is granted. Plaintiff may
file a second amended complaint containing all his
allegations, including his conspiracy claim and alleged
injury from lack of access to the courts, on or before
November 17, 2017. In order to comply with
Court rules, all of plaintiff's allegations must be set
forth in a single complaint. The Court will not consider the
additional allegations raised in his motion or his supplement
unless they are incorporated into this second amended
Court grants plaintiff's request and allows plaintiff to
file a second amended complaint. If plaintiff wishes to
include the additional claims raised in his motion and his
supplement, he must present this second amended complaint on
the form provided by the Court, incorporating
all the claims he wishes to bring against
defendants. The second amended complaint must be legibly
rewritten or retyped in its entirety, it should be an
original and not a copy, it should contain the same case
number, and it may not incorporate any part of the amended
complaint by reference. The second amended complaint will act
as a complete substitute for the amended complaint, and not
as a supplement. A second amended complaint supersedes the
amended complaint. Forsyth v. Humana, Inc., 114 F.3d
1467, 1474 (9th Cir. 1997) overruled in part on other
grounds, Lacey v. Maricopa County, 693 F.3d 896 (9th
Cir. 2012). Therefore, the second amended complaint
must be complete in itself and all facts and
causes of action alleged in the amended complaint that are
not alleged in the second amended complaint are waived.
Forsyth, 114 F.3d at 1474. The Court will screen the
second amended complaint to determine whether it contains
factual allegations linking each defendant to the alleged
violations of plaintiff's rights. The Court will not
authorize service of the amended complaint on any defendant
who is not specifically linked to a violation of
plaintiff fails to file a second amended complaint containing
all his allegations on or before November 17,
2017, the current amended complaint (Dkt. 13) will
remain the operative complaint in this action. The Court will
not consider the additional allegations raised in
plaintiff's motion (Dkt. 16) or his supplement (Dkt. 18)
unless they are incorporated into the second amended
Clerk is directed to send plaintiff the appropriate forms for
filing a 42 U.S.C. § 1983 civil rights complaint and for
service. The Clerk is further directed to send copies ...