DAVID H. BARTICK, Magistrate Judge.
On July 21, 2014, Petitioner Jeffrey Roberts, a state prisoner proceeding pro se, filed a motion for leave to file an amended petition for writ of habeas corpus. (ECF No. 13.) For the reasons set forth below, the Court finds Petitioner's motion for leave to amend should be
On February 24, 2014, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On March 3, 2014, the Court dismissed his Petition without prejudice because Petitioner failed to satisfy the filing fee requirement. (ECF No. 3.) Petitioner subsequently paid the filing fee and the Court re-opened the case. (ECF Nos. 4, 5.)
On June 24, 2014, Respondent filed a motion to dismiss the Petition arguing that the Petition fails to state a proper claim for federal habeas relief, specifically, that the Petition is deficient because it fails to challenge the legality or duration of Petitioner's confinement and it fails to allege a violation of any federal law. (ECF No. 10.) Instead of filing an opposition to Respondent's motion to dismiss, on July 21, 2014, Petitioner filed the instant motion for leave to file an amended petition. (ECF No. 13.)
Habeas petitions "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242.
Federal Rule of Civil Procedure 15(a)(1) provides that "[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." 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). Whether to grant leave to amend rests in the sound discretion of the trial court. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir. 1993)). "In exercising its discretion `a court must be guided by the underlying purpose of Rule 15 — to facilitate decision on the merits rather than on the pleadings or technicalities.'" DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)).
In general, "Rule 15's policy of favoring amendments to pleadings should be applied with `extreme liberality.'" Webb, 655 F.2d at 979 (quoting Rosenberg Bros. & Co., Inc. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per curiam)). The policy of favoring amendments under Rule 15(a) "is applied even more liberally to pro se litigants" than to parties represented by counsel. Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). The Supreme Court has outlined several factors a district court should consider in determining whether to permit leave to amend:
Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting FED. R. CIV. P. 15(a)(2); see also Bonin, 59 F.3d at 845 (factors to consider include "bad faith, undue delay, prejudice to the opposing party, and whether the party has previously amended his pleadings.") (citing W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)); Ascon Props., Inc. v. Mobile Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (leave to amend under Rule 15(a)(2) "need not be granted where the amendment . . . would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay.") (citations omitted).
The Ninth Circuit has recognized that "[n]ot all of the factors merit equal weight," and "it is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, LLC v. Spechler, 316 F.3d 1048, 1052 (9th Cir. 2003) (citing DCD Programs, 833 F.2d at 185). "The party opposing amendment bears the burden of showing prejudice." DCD Programs, 833 F.2d at 187 (citing Beeck v. Aquaslide `N' Dive Corp., 562 F.2d 537, 540 (8th Cir. 1977)). "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, 316 F.3d at 1052 (citing Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997)).
In his motion for leave to file an amended petition, Petitioner argues that his motion is not brought in bad faith, to cause undue delay, or as a form of improper dilatory tactics. Instead, Petitioner contends he makes the request in order to cure significant and harmful errors and deficiencies in his original Petition that he has only now become aware of as a result of Respondent's motion to dismiss and after receiving advice of a fellow inmate. Finally, Petitioner contends Respondent would not be disadvantaged if the Court were to permit Petitioner leave to file an amended petition.
Respondent argues Petitioner's motion for leave to amend should be denied because the proposed amended petition, like the original Petition, fails to state a proper claim for federal habeas relief because it does not challenge the fact or duration of Petitioner's confinement. Respondent also contends Petitioner cannot allege a cognizable due process claim.
As an initial matter, the Court finds Petitioner is not entitled to amend his Petition once as a matter of course pursuant to Rule 15(a)(1)(B). As noted above, a party is entitled to amend its pleading once as a matter of course within twenty-one days after service of either a responsive pleading or a motion under Rule 12(b), (e), or (f), whichever is earlier. FED. R. CIV. P. 15(a)(1)(B). Here, Respondent filed and served his motion to dismiss on June 24, 2014. (See ECF No. 10 at 7.) Petitioner's motion for leave to amend was filed on July 21, 2014. (See ECF No. 13.) However, pursuant to the prison mailbox rule, the motion, which includes a copy of the proposed amended petition, is deemed filed no later than July 8, 2014.
Nevertheless, Respondent's motion is not the type of motion contemplated by Rule 15(a)(1)(B), i.e., a motion under Rule 12(b), (e), or (f). Rather, Respondent filed his motion to dismiss pursuant to Rule 4 of the Rules Governing 28 U.S.C. Section 2254 Cases. (See ECF No. 10 at 1:25-26.) Because Respondent's motion to dismiss is not a motion under Rule 12(b), (e), or (f), Rule 15(a)(1)(B) is not available to Petitioner. See Velasquez v. Benov, No. 1:10-cv-01593 AWI MJS HC, 2011 U.S. Dist. LEXIS 79063, at *9 (E.D. Cal. July 20, 2011) (recognizing that "a Rule 12(b)(6) motion attacking the sufficiency of the pleading in the petition does not comfortably fit within the habeas landscape."); Van Buren v. Pliler, No. C 00-0998 PJH (PR), 2011 U.S. Dist. LEXIS 3183, at *1 (N.D. Cal. Mar. 16, 2011) ("Motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure are not appropriate in habeas cases." (citing Browder v. Director, Dep't of Corrections of Ill., 434 U.S. 257, 269 n.14 (1978))).
Although Petitioner is not entitled to amend his Petition as a matter of course pursuant to Rule 15(a)(1), "Rule 15(a)(2) (stipulation or leave) remains available for proposed amendments." Stuart v. Fisher, No. 1:02-cv-00020-BLW, 2013 U.S. Dist. LEXIS 124715, at *14 (D. Idaho Aug. 27, 2013). As noted, "Rule 15's policy of favoring amendments to pleadings should be applied with `extreme liberality,'" Webb, 655 F.2d at 979 (citing Rosenberg Bros., 283 F.2d at 406), even more so in this case given that Petitioner is not represented by counsel. Eldridge, 832 F.2d at 1135.
Upon review of the parties' arguments and the Foman factors, the Court finds leave to amend is warranted. This is Petitioner's first request to amend the Petition, and there is no evidence that his motion is brought in bad faith or to cause undue delay.
In consideration of the Foman factors, and in light of Petitioner's status as a pro se litigant and Rule 15's underlying purpose to facilitate resolution "on the merits rather than on the pleadings or technicalities," DCD Programs, 833 F.2d at 186, the Court exercises its discretion to
Based on the foregoing, IT IS HEREBY ORDERED:
1. Petitioner's motion for leave to file a an amended petition for writ of habeas corpus is
2. If Respondent contends the First Amended Petition can be decided without the Court's reaching the merits of Petitioner's claims, Respondent shall file a motion to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases no later than
3. If Respondent files a motion to dismiss, Petitioner shall file his opposition, if any, to the motion no later than
4. Unless the Court orders otherwise, Respondent shall not file a reply to Petitioner's opposition to a motion to dismiss. If the motion is denied, the Court will afford Respondent adequate time to respond to Petitioner's claims on the merits.
5. If Respondent does not contend that the First Amended Petition can be decided without the Court reaching the merits of Petitioner's claims, Respondent shall file and serve an answer to the Petition,
6. Petitioner may file a traverse to matters raised in the answer no later than
7. A request by a party for an extension of time within which to file any of the pleadings required by this Order should be made in advance of the due date of the pleading, and the Court will grant such a request only upon a showing of good cause. Any such request shall be accompanied by a declaration under penalty of perjury explaining why an extension of time is necessary.
8. Unless otherwise ordered by the Court, this case shall be deemed submitted on the day following the date Petitioner's opposition to a motion to dismiss and/or his traverse is due.
