United States District Court, W.D. Washington, Tacoma
ORDER FOR PLAINTIFF TO SHOW CAUSE AND RENOTING
Richard Creatura, United States Magistrate Judge.
matter is before the Court on plaintiff's response to
defendants' motions to dismiss. See Dkts. 16,
20, 23. Plaintiff's response indicates that plaintiff
seeks to amend his complaint in this matter. If plaintiff
still wishes to amend his complaint, he must comply with this
Order and file a motion to amend-including a proposed amended
complaint-on or before November 15, 2019.
a prisoner who proceeds pro se and in forma
pauperis, initiated this matter in June 2019.
See Dkt. 1. In his complaint, which he brought under
42 U.S.C. § 1983, plaintiff alleges that events that
occurred during his pre-conviction transport from Tennessee
to Washington State constituted cruel and unusual punishment
in violation of the Eighth Amendment. Dkt. 6, at 8.
filed motions to dismiss (see Dkts. 16, 20), and
plaintiff has filed a response, including a motion to strike
the motions to dismiss. See Dkt. 23, at 1.
Plaintiff's response raises additional claims to the
claim of cruel and unusual punishment in his complaint,
including stating that there was violation of his “8th
and 14th Amendment civil rights, as well as prosecutorial
misconduct, deliberate indifference, obstruction of justice,
malicious prosecution, and conspiracy to interfere with civil
rights.” Dkt. 23, at 4. Plaintiff's response also
includes facts not alleged in his complaint, including
allegations that the prosecutor suppressed his medical
records to impede this matter. See Dkt. 23, at 14.
And in his response, plaintiff appears to state that he is
entitled to amend his complaint as a matter of course under
Federal Rule of Civil Procedure 15(a)(1). See Dkt.
23, at 16. He asks that the Court “add the enclosed
information and grounds in [the response] as an amended and
supplemental pleading to [p]laintiff's original
pleading.” Dkt. 23, at 16. Plaintiff has also filed
pending motions to compel disclosure of or subpoena
information that he alleges is related to his claims.
See Dkts. 24, 25. In their reply in support of the
motion to dismiss, defendants request that the court decline
to allow plaintiff to amend his complaint. See Dkt.
26, at 4.
may not amend his complaint as a matter of course under Rule
15(a)(1). That rule allows such an amendment if done within,
as relevant here, “21 days after service of a motion
under Rule 12(b)[.]” Fed.R.Civ.P. 15(a)(1)(B).
“In all other cases, a party may amend its pleading
only with the opposing party's written consent or the
court's leave. The court should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Because
plaintiff's request to amend his complaint was made on
October 14-more than 21 days after the first motion to
dismiss was filed (see Dkt. 16)-and plaintiff does
not have the opposing parties' written consent to amend,
plaintiff must obtain this Court's leave to amend his
the Court has instructed plaintiff that requests for court
action “shall be set forth in a motion[.]” Dkt.
7. Here, plaintiff has simply included a request to amend his
complaint within the conclusion to his “Objections to
Defendant[']s Motion to Dismiss and Summary
Judgment.” See Dkt. 23, at 16. As defendants
point out, plaintiff's requesting to amend his complaint
in a response to a motion to dismiss is inappropriate.
See Dkt. 26, at 4.
addition to filing a motion to amend, plaintiff “must
attach a copy of the proposed amended pleading as an exhibit
to” a motion or stipulation to amend his pleading.
See Local Civil Rule 15. Plaintiff has not provided
this Court with a copy of the proposed amended pleading. In
determining whether leave to amend is appropriate, the
district court considers ‘the presence of any of four
factors: bad faith, undue delay, prejudice to the opposing
party, and/or futility.'” Owens v. Kaiser
Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th
Cir. 2001) (quoting Griggs v. Pace Am. Group, Inc.,
170 F.3d 877, 880 (9th Cir. 1999)). Without a proposed
amended complaint, the undersigned is unable to consider if
leave to amend should be granted in light of these four
at this time, the undersigned declines to rule on
plaintiff's request to amend contained in his response to
the motions to dismiss. However, the undersigned also
declines defendants' request to issue a report and
recommendation regarding the motion to dismiss and ignore the
“materials and causes of action that have been added in
opposition briefing.” Dkt. 26, at 4. Rather, the Court
will offer plaintiff an opportunity to properly request to
amend his complaint.
plaintiff still wishes to amend his complaint (Dkt. 6), he
may file a motion to amend with an attached amended proposed
complaint on or before November 18, 2019. The proposed
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 complaint (Dkt. 6) by reference. The proposed
amended complaint will act as a complete substitute for the
complaint, and not as a supplement. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
plaintiff does not file a motion to amend and proposed
amended complaint on or before November 15, 2019, the matter
shall proceed on plaintiff's complaint. See Dkt.
6. The Court will re-note other pending motions in this
AND DIRECTIONS TO THE CLERK
plaintiff wishes to amend his complaint, he must file a
motion for leave to amend- including a proposed amended
complaint-on or before November 15, 2019.
The Clerk's Office shall update the docket accordingly
and shall re-note pending motions in this matter (Dkts. 16,
20, 24, and 25) for consideration on November 22, 2019. The