Flowers v. Davey, et al.

Filing 9

ORDER DENYING Plaintiff's 8 Motion to Supplement Pleadings; ORDER to Clerk of Court to File Amended Complaint signed by Magistrate Judge Barbara A. McAuliffe on 12/5/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUPERT FLOWERS,

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Plaintiff,

Case No. 1:16-cv-01363-BAM (PC)
ORDER REGARDING PLAINTIFF’S
MOTION TO SUPPLEMENT PLEADINGS

v.
(ECF No. 8)
DAVE DAVEY, et al.,

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Defendants.

ORDER TO CLERK OF COURT TO FILE
AMENDED COMPLAINT

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Plaintiff Rupert Flowers (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on

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September 15, 2016. (ECF No. 1.)

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Before the Court could screen Plaintiff’s original complaint, he filed the current

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motion to supplement his complaint under Federal Rule of Civil Procedure 15(d), on November

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21, 2016. (ECF No. 8.) Plaintiff’s proposed supplemental complaint was attached to that motion.

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(Id. at pp. 3-23.)

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Rule 15 distinguishes between supplementing and amending a complaint. In an amended

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complaint, a party may replead or add facts or claims arising prior to or contemporaneously with
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the allegations of the original complaint. See United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir.

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2002); Flaherty v. Lang, 199 F.3d 607, 613 n.3 (2d. Cir. 1999). A supplemental complaint

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addresses matters occurring after the original complaint is filed. Fed. R. Civ. P. 15(d). While

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leave to permit supplemental pleadings is favored, it cannot be used to introduce a separate,

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distinct and new cause of action. See Planned Parenthood of So. Arizona v. Neely, 130 F.3d 400,

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402 (9th Cir. 1997); see also, 6A Fed. Prac. & Proc Civ. § 1509 (3d ed.) (noting that leave to file

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a supplemental pleading will be denied where “the supplemental pleading could be the subject of

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a separate action”).

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Here, Plaintiff’s proposed complaint is not a supplement; instead, it completely re-states

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his original complaint allegations, with a few additional factual allegations that occurred after the

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date of his original complaint. The additional allegations concern the same claims raised and

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defendants sued in his original complaint. Since it appears Plaintiff intends to supersede his

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original complaint in its entirety, the Court construes his motion as a request for leave to amend,

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which is granted. The Court will further direct the Clerk of the Court to file Plaintiff’s

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supplemental complaint attached to his motion, as a first amended complaint. The Court will

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screen Plaintiff’s first amended complaint in due course.

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Accordingly, the Court HEREBY ORDERS as follows:

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1. Plaintiff’s motion to supplement pleadings, filed November 21, 2016 (ECF No. 8) is

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DENIED, as moot; and
2. The Clerk of the Court shall file Plaintiff’s supplemental complaint (ECF No. 8, pp. 323) on the docket as Plaintiff’s first amended complaint.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 5, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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