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Perez v. Cogburn

United States District Court, W.D. Washington, Seattle

November 8, 2019

DANIEL JAY PEREZ, Plaintiff,
v.
CALVIN COGBURN, et al., Defendant.

          ORDER GRANTING MOTION TO AMEND AND DIRECTING FILING AND SERVICE OF SECOND AMENDED COMPLAINT

          BRIAN A. TSUCHIDA, United States Magistrate Judge.

         Plaintiff filed his 42 U.S.C. §1983 civil rights action in December 2018. After service of the original complaint but prior to defendants' answers, plaintiff filed an amended complaint and defendants have now filed answers. Dkts. 25, 40. Plaintiff now moves for leave to file a second amended complaint and attaches a document entitled “second proposed supplemental amended complaint.” Dkt. 75. The “second proposed supplemental amended complaint” includes a new defendant, Charlotte Joplin, and no longer names Lisa Anderson as a defendant. Id.

         Defendants, in response to plaintiff's motion, indicate they do not object to plaintiff filing a second amended complaint or a supplement to his first amended complaint, but request clarification as to whether plaintiff is intending to file a second amended complaint, which would act as a complete substitute for any prior complaints, or whether he is attempting to file a supplement to his first amended complaint. Dkt. 79. Plaintiff, in reply, clarifies that his intent is to file a second amended complaint, not to supplement, but also indicates he inadvertently left out defendant Anderson in his proposed second amended complaint, and submits a corrected proposed second amended complaint which includes defendant Anderson. Dkt. 80. The corrected proposed second amended complaint filed with plaintiff's reply appears otherwise identical to the proposed second amended complaint filed with plaintiff's motion. Compare Dkts. 75, 80.

         Pursuant to Fed.R.Civ.P. 15(a), at this point in the litigation, plaintiff “may amend [his] pleading only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” In determining whether to allow an amendment to a complaint Courts consider the following factors: “the presence or absence of undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, and futility of the proposed amendment.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989).

         Here, defendants do not object to plaintiff's filing of the proposed second amended complaint included with plaintiff's motion to amend. Dkt. 79. The Court notes that plaintiff has submitted a corrected second amended complaint in his reply which includes defendant Anderson, who he indicates he inadvertently omitted, but makes no other changes. Dkt. 80. Because defendant Anderson was previously named and has appeared in this action, and the defendants do not otherwise object to the proposed second amended complaint, it does not appear to the Court that defendants will be prejudiced by the plaintiff's correction to the second amended complaint.

         Accordingly, plaintiff's motion to file a second amended complaint (Dkt. 75, 80) is GRANTED and it is further ORDERED:

         (1) The Clerk is directed to docket plaintiff's corrected proposed second amended complaint included with his reply (Dkt. 80, at 9-69) as the second amended complaint and add defendant Charlotte Joplin as a defendant to the docket.

         (2) Service by Clerk

         The Clerk is directed to send the following to pre-existing defendants who have already appeared in this action, Calvin Cogburn (Psychiatric ARNP, Special Offender Unit, Monroe Correctional Complex), Steven Jewitt (DOC Psychiatrist, Special Offender Unit, Monroe Correctional Complex), Daniel Schneeweiss (DOC Psychiatrist, Special Offender Unit, Monroe Correctional Complex), Jack Warner (Superintendent, Special Offender Unit, Monroe Correctional Complex), Lisa Anderson (Correctional Unit Supervisor, Monroe Correctional Complex), Kathy Grey (E-Unit Supervisor, Special Offender Unit, Monroe Correctional Complex), Tanya Brown (DOC Psychologist, Special Offender Unit, Monroe Correctional Complex), William J. Collins (DOC Psychologist/Psychiatrist, Special Offender Unit, Monroe Correctional Complex), Eric S. Rosmith (DOC Psychologist/Psychiatrist, Special Offender Unit, Monroe Correctional Complex), Robert Carsrud (DOC Psychologist/Psychiatrist, Special Offender Unit, Monroe Correctional Complex), Lamin Sanneh (DOC Psychologist/Psychiatrist, Special Offender Unit, Monroe Correctional Complex), C. Sais (DOC Psychologist Associate, Special Offender Unit, Monroe Correctional Complex), Bruce Gage (DOC Psychiatrist Overseeing, Special Offender Unit, Monroe Correctional Complex) by e-mail: a copy of plaintiff's second amended complaint, this Order, and notice of lawsuit.

         The Clerk is directed to send to the newly named defendant Charlotte Joplin, (“Administrator”, Special Offender Unit, Monroe Correctional Complex) by email: a copy of plaintiff's second amended complaint and this Order, notice of lawsuit and request for waiver of service of summons, and a waiver of service of summons.

         (3) Response Required

         Defendant Charlotte Joplin shall have 30 days within which to return the enclosed waiver of service of summons. If defendant timely returns the signed waiver she shall have 60 days after the date designated on the notice of lawsuit to file and serve an answer to the complaint or a motion permitted under Rule 12 of the Federal Rules of Civil Procedure.

         If defendant fails to timely return the signed waiver she will be personally served with a summons and complaint and may be required to pay the full costs of such service, pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure. A defendant who has been personally served shall file an answer or motion permitted under Rule 12 within 30 days after service.

         To the extent the second amended complaint contains new allegations against the pre-existing defendants who have already appeared in this action, those defendants shall file and serve amended answers to the second amended complaint, or a motion permitted under Rule 12 of the Federal Rules ...


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