De-Luis-Conti et al v. Cates et al

Filing 41

ORDER DENYING Plaintiff's 40 Request to Supplement Fifth Amended Complaint signed by Magistrate Judge Michael J. Seng on 12/21/2012. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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GRAHAM ROGER-LEE
DE-LUIS-CONTI,

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Plaintiff,

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vs.

CASE No.

1:10-cv-1852-LJO-MJS (PC)

ORDER DENYING PLAINTIFF’S REQUEST
TO SUPPLEMENT FIFTH AMENDED
COMPLAINT
(ECF No. 40)

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M. CATES, et al.,
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Defendants.
________________________________/

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I.

PROCEDURAL HISTORY

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Plaintiff Graham Roger-Lee De-Luis-Conti is a state prisoner proceeding pro se
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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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Plaintiff filed this action in the Northern District of California, on November 19,
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2008. (ECF No. 1.) It later was transferred to the Eastern District of California. (ECF
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No. 16.) Plaintiff has declined Magistrate Judge jurisdiction. (Decline Magistrate, ECF
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No. 20.)
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Plaintiff filed several amended complaints prior to the Court screening his
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action. (ECF Nos. 17, 27, 33.) The Court screened Plaintiff’s Fourth Amended
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Complaint (Fourth Am. Compl., ECF No. 33) on October 31, 2012 and dismissed it for
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failure to state a claim, but gave leave to file an amended pleading. (Order Dismiss.

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Fourth Am. Compl., ECF No. 38.) On December 3, 2012, Plaintiff filed a Fifth

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Amended Complaint. (Fifth Am. Compl., ECF No. 39.) The Fifth Amended Complaint

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has not yet been screened.
Plaintiff has now filed an Affidavit Statement of Fact. (Affidavit, ECF No. 40.) It

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appears to constitute a request to supplement the Fifth Amended Complaint. The court

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so construes it and denies it for the reasons set forth below.

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II.

APPLICABLE LAW

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend his

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pleading once as a matter of course at any time before a responsive pleading is served.

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Otherwise, a party may amend only by leave of the court, or by written consent of the

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adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ . P.

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15(a).
“Rule 15(a) is liberal and leave to amend shall be given when justice so

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requires.” Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir.

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2006), quoting Fed. R. Civ. P. 15(a). Amended pleadings must be complete within

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themselves without reference to another pleading. Partial amendments are not

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permissible. Local Rule 220.

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III.

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ANALYSIS
Here, Plaintiff asks to file a supplement to his underlying pleading to include

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allegations he feels should have been included. Plaintiff’s supplement to the Fifth

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Amended Complaint is deficient because it is not complete in and of itself, but instead

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is dependent upon the underlying pleading.

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Any pleading must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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555 (2007). A plaintiff must set forth “sufficient factual matter, accepted as true, to state

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a claim that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 1949–50.
If Plaintiff intends the Affidavit as an exhibit to the Fifth Amended Complaint, he

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is advised that exhibits need not, and rarely should be, made part of a pleading. They

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may not, in any event, be filed separately. “The court cannot serve as a repository for

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the parties' evidence (i.e., prison or medical records, witness affidavits, etc.). The

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parties may not file evidence with the court until the course of litigation brings the

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evidence into question (for example, on a motion for summary judgment, at trial, or

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when requested by the court).” (First Informational Order, ECF No. 19 at ¶ 6.)

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IV.

ORDER
Accordingly, for the foregoing reasons, it is HEREBY ORDERED that Plaintiff’s

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Affidavit Statement of Facts, construed as a request to supplement to the Fifth

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Amended Complaint (ECF No. 40) is DENIED.

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IT IS SO ORDERED.

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Dated:
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December 21, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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