Jenkins v. Yates et al

Filing 27

ORDER Denying Plaintiff's 23 Motion to File Supplemental Complaint; ORDER ADOPTING 25 FINDINGS AND RECOMMENDATIONS; ORDER Dismissing Action, with Prejudice, for Failure to State a Claim upon which Relief may be Granted under Section 1983; ORDER that Dismissal is Subject to 28 U.S.C. § 1915(g); ORDER Directing Clerk to Close Action signed by District Judge Lawrence J. O'Neill on 01/08/2013. CASE CLOSED.(Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMAL ALBERT JENKINS,

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Plaintiff,

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vs.

1:11-cv-00805-LJO-GSA-PC
ORDER DENYING PLAINTIFF'S
MOTION TO FILE A SUPPLEMENTAL
COMPLAINT
(Doc. 23.)

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JAMES A. YATES , et al.,

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS
(Doc. 25.)

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Defendants.

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ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED UNDER § 1983
ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(g)

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ORDER DIRECTING CLERK TO CLOSE CASE
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_____________________________/

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Jamal Albert Jenkins (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.

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On December 2, 2012, findings and recommendations were entered, recommending that this

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action be dismissed based on Plaintiff’s failure to state a claim upon which relief may be granted under

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§ 1983. On January 2, 2012, Plaintiff filed objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this Court

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has conducted a de novo review of this case. Having carefully reviewed the entire file, including

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Plaintiff's objections, the Court finds the findings and recommendations to be supported by the record

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and proper analysis.

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In his objections, Plaintiff argues that his case should not be dismissed without resolution of his

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pending motion for leave to file a supplemental complaint, filed on August 9, 2012. A supplemental

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complaint, which is different than an amended complaint, adds allegations to the complaint of events

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occurring after the original complaint was filed. Fed. R. Civ. P. 15(d). Under Rule 15(d), “the court

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may, on just terms, permit a party to serve a supplemental pleading setting out any transaction,

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occurrence, or event that happened after the date of the pleading to be supplemented.” Id. A party may

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only file a supplemental complaint with leave of court. Id. When considering whether to allow a

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supplemental complaint, the Court considers factors such as whether allowing supplementation would

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serve the interests of judicial economy; whether there is evidence of delay, bad faith or dilatory motive

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on the part of the movant; whether amendment would impose undue prejudice upon the opposing party;

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and whether amendment would be futile. See San Luis & Delta-Mendota Water Authority v. United

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States Department of the Interior, 236 F.R.D. 491, 497 (E.D. Cal. 2006) (citing Keith v. Volpe, 858 F.2d

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467 (9th Cir. 1988), Foman v. Davis, 371 U.S. 178 (1962), and Planned Parenthood of S. Ariz. v. Neely,

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130 F.3d 400 (9th Cir. 1997)). Here, in light of the Magistrate Judge's findings that the operative

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complaint in this action fails to state any cognizable claims and should be dismissed it would be futile

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for Plaintiff to file a supplemental complaint. Therefore, Plaintiff's motion to file a supplemental

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complaint is denied. Should Plaintiff wish to pursue claims arising after this case was filed, his remedy

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is to file a new complaint.

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Accordingly, THE COURT HEREBY ORDERS that:

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Plaintiff's motion to file a supplemental complaint, filed on August 9, 2012, is DENIED;

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2.

The Findings and Recommendations issued by the Magistrate Judge on December 2,

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2012, are ADOPTED in full;
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3.

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This action is DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim
upon which relief may be granted under § 1983;

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4.

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This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g);
and

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The Clerk of Court is directed to CLOSE this case.

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IT IS SO ORDERED.

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Dated:

January 8, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

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