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Daniels v. Wayman

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

December 26, 2019

DAVID DANIELS, Plaintiff,
v.
MICHAEL WAYMAN, THOMAS L'HEUREUX, Defendants.

          ORDER

          DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.

         Plaintiff David Daniels, proceeding pro se and in forma pauperis, filed this civil rights complaint under 42 U.S.C. § 1983. The District Court has referred this action to United States Magistrate Judge David W. Christel. Presently pending in this action are Plaintiff's: (1) Motion for Leave to File Amended Complaint (“Motion to Amend, ” Dkt. 11) and (2) Motion to Appoint Counsel (Dkt. 12). The Court grants Plaintiff's Motion to Amend (Dkt. 11) and directs Plaintiff to file an amended complaint on or before January 26, 2020. The Court denies Plaintiff's Motion to Appoint Counsel (Dkt. 12) without prejudice.

         1. Motion to Amend (Dkt. 11)

         Plaintiff moves for leave to amend his complaint to add claims and factual allegations. Dkt. 11. Plaintiff also seeks to addresses for several defendants. Id.

         Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,

(1) Amending as a Matter of Course
A 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 service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments
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.

         The Motion to Amend is Plaintiff's first motion and he has not previously amended his Complaint in this case. Plaintiff filed the Motion to Amend before the Complaint was served and prior to Defendants' filing of a responsive pleading or motion under Rule 12(b). See Dkt. Therefore, Plaintiff has the right to amend his Complaint as a matter of course pursuant to Rule 15(a)(1)(B). See Trudeau v. Direct Marking Concepts, Inc., 90 Fed.Appx. 486 (9th Cir. 2003) (finding the plaintiff was allowed to amend his complaint as a matter of right when the motion to amend was filed before the defendant filed a responsive pleading). Accordingly, Plaintiff's Motion to Amend (Dkt. 11) is granted.

         Plaintiff has not attached a proposed amended complaint to his Motion to Amend. He has only briefly described the supplemental claims he wishes to add to his Complaint. See Dkt. 11. To amend his Complaint, Plaintiff must file an amended complaint on the form provided by the Court. The 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 by reference. The 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).

         The Court reminds Plaintiff, under Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain statement of the claim showing the pleader is entitled to relief, ” and “[e]ach averment of a pleading shall be simple, concise, and direct.” Fed.R.Civ.P. 8(a)(e). Within the amended complaint, Plaintiff must write a short, plain statement telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the person who violated the right; (3) exactly what the individual did or failed to do; (4) how the action or inaction of the individual is connected to the violation of Plaintiff's constitutional rights; and (5) what specific injury Plaintiff suffered because of the individual's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

         If Plaintiff fails to file an amended complaint by January 26, 2020 the Court will proceed on Plaintiff's Complaint. The Clerk is directed to send Plaintiff the appropriate forms ...


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