Felton v. Lopez, et al.

Filing 21

ORDER GRANTING 19 Motion to Amend the Complaint, signed by Magistrate Judge Gary S. Austin on 04/03/2013.(30) Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELVIN FELTON,

1:12-cv-01066-AWI-GSA-PC

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ORDER GRANTING PLAINTIFF’S
RENEWED MOTION FOR LEAVE TO FILE
SUPPLEMENTAL COMPLAINT
(Doc. 19.)

Plaintiff,
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v.

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J. LOPEZ, et al.,
THIRTY DAY DEADLINE TO FILE
SUPPLEMENTAL COMPLAINT AS
INSTRUCTED BY THIS ORDER

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Defendants.
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/
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I.

BACKGROUND

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Kelvin Felton (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

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action on June 29, 2012. (Doc. 1.)

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On August 24, 2012, Plaintiff filed a motion for leave to file a supplemental complaint, to

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add allegations of excessive force against defendant C/O J. Lopez based on an incident occurring

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after the original Complaint was filed on June 29, 2012. (Doc. 10.) Plaintiff provided a copy of a

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Form-602 inmate appeal which he submitted on July 20, 2012, in which he alleges that on July 20,

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2012, as he was leaving the dining hall, C/O J. Lopez pushed him from behind for no reason and

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extended his baton, attempting to provoke an altercation. (Id. at 3-4.) On February 13, 2013, the

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Court denied Plaintiff’s motion for leave to supplement the complaint, without prejudice to renewal

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of the motion with Plaintiff’s declaration, signed under penalty of perjury, that he exhausted all

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available administrative remedies for the new excessive force claim against defendant C/O Lopez.

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(Doc. 12.)
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On March 13, 2013, Plaintiff filed a renewed motion for leave to file a supplemental

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complaint, together with a declaration addressing the exhaustion issue. (Doc. 16.) However,

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Plaintiff’s declaration was not signed under penalty of perjury as required by the Court. On March

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18, 2013, the Court denied Plaintiff's renewed motion, without prejudice to renewal of the motion

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with Plaintiff's declaration signed under penalty of perjury stating that he attempted, but was

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prevented from, exhausting administrative remedies for the later-occurring incident he seeks to add

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to the Complaint. (Doc. 17.) On April 1, 2013, Plaintiff filed a renewed motion for leave to file a

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supplemental complaint, together with a declaration addressing the exhaustion issue and signed

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under penalty of perjury. (Docs. 19, 20.)

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Plaintiff’s renewed motion for leave to file a supplemental complaint is now before the

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Court.

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II.

MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT

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A supplemental complaint, which is different than an amended complaint, adds allegations

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to the complaint of events occurring after the original complaint was filed. Fed. R. Civ. P. 15(d).

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

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

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supplemented.” Id. A party may only file a supplemental complaint with leave of court. Id. When

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considering whether to allow a supplemental complaint, the Court considers factors such as whether

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allowing supplementation would serve the interests of judicial economy; whether there is evidence

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of delay, bad faith or dilatory motive on the part of the movant; whether amendment would impose

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undue prejudice upon the opposing party; and whether amendment would be futile. See San Luis

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& Delta-Mendota Water Authority v. United States Department of the Interior, 236 F.R.D. 491, 497

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(E.D. Cal. 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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Discussion

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Plaintiff shall be granted leave to file a supplemental complaint adding allegations of

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excessive force against defendant C/O J. Lopez based on an incident occurring on July 20, 2012, as

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documented by the CDC-602 form Plaintiff submitted with his August 24, 2012 motion. (Doc. 10
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at 3-4.) On February 13, 2013, the Court found that Plaintiff’s Complaint filed on June 29, 2012

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states cognizable claims for excessive force against defendants C/O Lopez and C/O Harrison. (Doc.

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13.) In the August 24, 2012 motion for leave to supplement the Complaint, Plaintiff indicates that

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defendant C/O Lopez continues to use force unnecessarily against him, and Plaintiff wishes to make

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additional allegations against Lopez for excessive force which occurred after the original Complaint

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was filed. The Court finds that supplementation of the Complaint with these new allegations would

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serve the interests of judicial economy because Plaintiff’s related claims would be included in one

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lawsuit. It appears from Plaintiff’s declaration signed under penalty of perjury, in which Plaintiff

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states that he attempted to exhaust administrative remedies for the July 20, 2012 incident, that

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Plaintiff exhausted the remedies available to him. (Doc. 20.)

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Based on the foregoing, the Court shall grant Plaintiff’s renewed motion to file a

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supplemental complaint, for the purpose of adding allegations of excessive force against defendant

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C/O J. Lopez based on an incident occurring on July 20, 2012.

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III.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s renewed motion to file a supplemental complaint, filed on April 1, 2013,

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is GRANTED, for the sole purpose of adding allegations of excessive force against

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defendant C/O J. Lopez based on an incident occurring on July 20, 2012, as

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documented by the CDC-602 form Plaintiff submitted with his August 24, 2012

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motion;

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2.

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Plaintiff is granted thirty days from the date of service of this order in which to file
a supplemental complaint as described in this order; and

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3.

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Plaintiff’s failure to comply with this order shall result in a recommendation that this
action be dismissed for failure to comply with a court order.

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IT IS SO ORDERED.

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Dated:
6i0kij

April 3, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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