Lee v. Scribner et al

Filing 65

ORDER DENYING Plaintiff's 58 Motion to File a Supplemental Complaint; ORDER STRIKING 59 Supplemental Complaint signed by District Judge Lawrence J. O'Neill on 9/29/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BOBBY LEE,

CASE NO. 1:05-cv-00802-SMS PC

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION TO
FILE A SUPPLEMENTAL COMPLAINT

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v.
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(ECF Nos. 58, 63)
DR. WAGNER,

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ORDER STRIKING
COMPLAINT

Defendant.

SUPPLEMENTAL

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(ECF No. 59)
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/

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Plaintiff Bobby Lee (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s
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second amended complaint, filed June 1, 2009, against Defendant Wagner for deliberate indifference
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to medical needs in violation of the Eighth Amendment. On September 9, 2011, Plaintiff filed a
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motion to filed a supplemental complaint and a supplemental complaint was lodged. (ECF Nos. 58,
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59.) Defendant filed an opposition to the motion on September 14, 2011. (ECF No. 63.)
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Plaintiff moves to file a supplemental complaint because he has now obtained supporting
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evidence and has cured the deficiencies for the claims that were dismissed for failure to state a
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claim. Defendant opposes the motion to file a supplemental complaint because the supplemental
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complaint raises the same claims that have already been dismissed three times for failure to state a
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claim. Additionally, Plaintiff filed a motion for reconsideration of the order dismissing these claims
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which was denied. Defendant argues that Plaintiff is attempting to circumvent the denial of
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reconsideration and requests that the motion be denied.
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“On motion and reasonable notice, the court may, on just terms, permit a party to serve a
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supplemental pleading setting out any transaction, occurrence , or event that happened after the date
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of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). The purpose of the supplemental
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complaint is to add claims that accrued after suit was filed. Here Plaintiff is clearly not attempting
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to supplement his complaint, but to file an amended complaint. Therefore, the Court construes

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Plaintiff’s pleading as a motion for the district court to reconsider the order denying his prior motion

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for reconsideration.

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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just terms,

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the court may relieve a party . . .from a final judgment, order, or proceeding for the following

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reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence

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. . . (3) fraud . . .; or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Where none

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of these factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437,

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1442 (9th Cir. 1991). . Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show

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“what new or different facts or circumstances are claimed to exist which did not exist or were not

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shown upon such prior motion, or what other grounds exist for the motion,” and “why the facts or

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circumstances were not shown at the time of the prior motion.”

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law,” and it “may not be used to raise arguments

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or present evidence for the first time when they could reasonably have been raised earlier in the

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litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.

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2009) (internal quotations marks and citations omitted) (emphasis in original).

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Plaintiff’s opposition is devoid of any ground entitling Plaintiff to reconsideration of the
Court’s order and shall be denied.

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Accordingly, it is HEREBY ORDERED that:

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DENIED; and

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2.

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The supplemental complaint, lodged September 9, 2011, is STRICKEN FROM THE
RECORD.

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Plaintiff’s motion to file a supplemental complaint, filed September 9, 2011, is

IT IS SO ORDERED.
Dated:
b9ed48

September 29, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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