Brown v. United States of America, et al.

Filing 44

ORDER DENYING 36 Motion for Leave to File Supplemental Complaint (Also Resolves 39 Motion); ORDER Granting Plaintiff Leave to File an All-Inclusive Fourth Amended Complaint as Instructed by This Order; signed by Magistrate Judge Gary S. Austin on 12/20/2013. (Thirty Day Deadline to File Fourth Amended Complaint.) (Attachments: # 1 Bivens Complaint Form)(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH A. BROWN,

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Plaintiff,

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vs.

ORDER DENYING MOTION FOR
LEAVE TO FILE SUPPLEMENTAL
COMPLAINT
(Doc. 36; also resolves Doc. 39.)

UNITED STATES OF AMERICA, et al.,

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Defendants.

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ORDER GRANTING PLAINTIFF LEAVE
TO FILE AN ALL-INCLUSIVE FOURTH
AMENDED COMPLAINT AS
INSTRUCTED BY THIS ORDER
THIRTY DAY DEADLINE TO FILE
FOURTH AMENDED COMPLAINT

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1:12-cv-00165-AWI-GSA-PC

I.

BACKGROUND

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Joseph A. Brown ("Plaintiff") is a federal prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388

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(1971). Plaintiff filed the Complaint commencing this action on February 6, 2012. (Doc. 1.)

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On April 4, 2012, Plaintiff filed the First Amended Complaint. (Doc. 7.) On February 8, 2013,

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Plaintiff filed the Second Amended Complaint, with consent of the court. (Doc. 21.) On

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August 9, 2013, Plaintiff filed a motion to amend the complaint, which was granted by the

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court on August 19, 2013. (Docs. 22, 24.)

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On September 23, 2013, Plaintiff filed the Third Amended Complaint and a motion for

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leave to file a supplemental complaint. (Docs. 36, 37.) On October 28, 2013, Plaintiff lodged a

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proposed Supplemental Complaint. (Doc. 42.)
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III.

SUPPLEMENTAL COMPLAINTS B RULE 15(d)

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Under Rule 15(d), Athe court may, on just terms, permit a party to serve a supplemental

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pleading setting out any transaction, occurrence, or event that happened after the date of the

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pleading to be supplemented.@ Fed. R. Civ. P. 15(d).

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complaint with leave of court.

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

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

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

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opposing party; and whether amendment would be futile. See San Luis & Delta-Mendota

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Water Authority v. United States Department of the Interior, 236 F.R.D. 491, 497 (E.D. Cal.

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2006) (citing Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988), Foman v. Davis, 371 U.S. 178

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(1962), and Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400 (9th Cir. 1997)).

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III.

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PLAINTIFF’S MOTION

“I hereby request permission from the court to file a supplemental
complaint in this case (Fed. R. Civ. P. 15(d)), to tell of events that
have happened since the filing of this case, and to seek injunctive
relief, & declaratory relief concerning this case and issues, as
well as a new legal claim.” (Doc. 36.)

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When considering whether to allow a supplemental

Plaintiff’s motion consists, in its entirety, of the following:

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Id.

A party may only file a supplemental

IV.

DISCUSSION
The court has reviewed Plaintiff’s Third Amended Complaint and proposed

Supplemental Complaint.

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Third Amended Complaint

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In the Third Amended Complaint, Plaintiff names as defendants Correctional Officer

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Briceton, Lt./DHO Gonzalez, Doe Defendant #1 (Physician’s Assistant), Doe Defendant #2

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(Doctor), Paul Copenhaven (Warden), and Robert McFadden (Western Regional Director).

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The events at issue allegedly occurred at the United States Penitentiary in Atwater, California

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(USP-Atwater) when Plaintiff was incarcerated there. Plaintiff alleges that employees at USP-

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Atwater retaliated against him, after a case against Plaintiff concerning a May 2008 incident

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with an officer at USP-Atwater was dismissed. Plaintiff alleges that Warden Copenhaven and
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Regional Director McFadden conspired to retaliate against him by referring him to a lockdown

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control unit after they both were made aware that Plaintiff suffers from mental illness and filed

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grievances to protest the referral.

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conspiracy when, disguised as a Lieutenant, he intentionally denied Plaintiff due process at the

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hearing referring him to lockdown. Plaintiff had also told Lt./DHO Gonzalez about his mental

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illness. Plaintiff also alleges he was assaulted by C/O Briceton, who threatened to punish him

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for the May 2008 incident. Plaintiff alleges that the two Doe Defendants refused to treat him

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for a serious case of food poisoning. Plaintiff requests monetary damages as relief.

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Plaintiff alleges that Lt./DHO Gonzalez joined the

Proposed Supplemental Complaint

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In the proposed Supplemental Complaint, Plaintiff names as defendants Paul

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Copenhaven (Warden) and Robert McFadden (Regional Director) (collectively, “Defendants”).

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The events at issue in the Supplemental Complaint occurred at USP-Atwater when Plaintiff

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was incarcerated there. Plaintiff alleges that Defendants retaliated against him in September

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2011 after he stood trial and was exonerated for a May 2008 incident that occurred with a staff

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officer at USP-Atwater. Plaintiff alleges that Defendants conspired to retaliate against him by

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referring him to a lockdown control facility, knowing that Plaintiff has a documented mental

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illness. Plaintiff requests monetary damages and injunctive and declaratory relief.

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Plaintiff’s allegations in the proposed Supplemental Complaint of retaliation against

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him by defendants Copenhaver and McFadden, appear to be a continuation of Plaintiff’s

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allegations against the same two defendants in the Third Amended Complaint. As such, all of

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Plaintiff’s claims against defendants Copenhaver and McFadden are related under Rule 18(a),

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which provides that “A party asserting a claim to relief as an original claim, counterclaim,

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cross-claim, or third-party claim, may join, either as independent or as alternate claims, as

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many claims, legal, equitable, or maritime, as the party has against an opposing party.” Fed. R.

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Civ. P. 18(a).

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Copenhaver and McFadden may be brought in one action.

Therefore, all of Plaintiff’s allegations and claims against defendants

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There is no need for Plaintiff to file a supplemental complaint to add his later

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allegations and claims. Because Plaintiff’s later allegations occurred in 2011, before Plaintiff
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filed this action in February 2012, all of Plaintiff’s allegations against defendants Copenhaver

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and McFadden may be included in one complaint. Therefore, Plaintiff’s motion to file a

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supplemental complaint shall be denied, and Plaintiff shall instead be granted leave to file a

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Fourth Amended Complaint which includes all of the related events at issue which occurred

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before the original Complaint was filed on February 6, 2012.1

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V.

CONCLUSION AND ORDER

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The court finds that all of Plaintiff’s related claims may be included in one complaint.

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Plaintiff shall be granted thirty days in which to file a Fourth Amended Complaint which

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includes all of his related claims arising from events occurring before February 6, 2012.

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Plaintiff is reminded that he must demonstrate in his amended complaint how the

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conditions complained of have resulted in a deprivation of plaintiff=s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms

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how each named defendant is involved. There can be no liability under 42 U.S.C. ' 1983

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unless there is some affirmative link or connection between a defendant=s actions and the

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claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164,

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167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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The amended complaint should be brief, but must state what each named defendant did

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that led to the deprivation of Plaintiff=s constitutional or other federal rights. Fed. R. Civ. P.

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8(a); Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); Jones v. Williams, 297 F.3d 930, 934

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(9th Cir. 2002). There is no respondeat superior liability, and each defendant is only liable for

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his or her own misconduct. Id. at 683. Plaintiff must set forth Asufficient factual matter . . . to

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>state a claim that is plausible on its face.=@ Id. at 663 (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must also demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added).

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ARule 15(a) is very liberal and leave to amend >shall be freely given when justice so requires.=@
AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) (quoting Fed. R. Civ. P.
15(a)).
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The amended complaint should be clearly and boldly titled AFourth Amended

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Complaint,@ refer to the appropriate case number, and be an original signed under penalty of

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perjury.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff's request for leave to file a supplemental complaint, filed on September
23, 2013, is DENIED;

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2.

Plaintiff is granted leave to file a Fourth Amended Complaint;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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Fourth Amended Complaint as discussed above, using the court=s form;

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4.

The amended complaint should be clearly and boldly titled “Fourth Amended

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Complaint,” refer to case number 1:12-cv-00165-AWI-GSA-PC, and be an

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original signed under penalty of perjury;

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5.

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The Clerk of the Court shall send one civil rights complaint form to Plaintiff;
and

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6.

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Plaintiff is warned that the failure to comply with this order will result in a
recommendation that this action be dismissed for failure to obey a court order.

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IT IS SO ORDERED.
Dated:

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November 20, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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