Turner v. Douglas et al

Filing 60

ORDER signed by Magistrate Judge Kendall J. Newman on 4/14/11 DENYING 57 Motion to file a supplemental complaint, construed as a motion for leave to file a second amended complaint. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY TURNER,

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Plaintiff,

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No. 2: 09-cv-3445 GEB KJN P

vs.
WILLIAM G. DOUGLAS, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion to file a

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supplemental complaint filed March 31, 2011. On April 8, 2011, defendants filed an opposition.

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For the following reasons, plaintiff’s motion is denied.

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This action is proceeding on the amended complaint filed July 7, 2010, as to

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defendants Jencks and Douglas based on their alleged failure to provide plaintiff with adequate

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pain medication and bandages while he was housed at the Yolo County Jail in 2009. This action

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is also proceeding against defendant Valentine based on his alleged failure to treat plaintiff’s

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staph infection while he was housed at the Yolo County Jail in 2009.

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In the supplemental complaint, plaintiff generally alleges that defendants failed to
provide him with adequate medical care while he was housed in the Yolo County Jail from
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September 18, 2009 to May 5, 2010.

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A supplemental pleading, as opposed to an amended one, is used to allege

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relevant facts occurring after the original pleading was filed. William W. Schwarzer, A. Wallace

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Tashima, & James M. Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial, § 8:1720 (The

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Rutter Group 2010)(hereinafter “Schwarzer, et al.”) (citing Fed. R. Civ. P. 15(d); Keith v. Volpe,

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858 F.2d 467, 468 (9th Cir. 1988)). A supplemental pleading, which is designed to bring an

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action “up to date,” is different than an amended pleading, which relates to matters existing when

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the original complaint was filed. Schwarzer, et al. at § 8:1720 (citing Manning v. City of

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Auburn, 953 F.2d 1355, 1359-60 (11th Cir. 1992); ConnectU LLC v. Zuckerberg, 522 F.3d 82,

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90 (1st Cir. 2008)).

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Because the proposed supplemental complaint contains claims regarding events

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occurring before the operative amended complaint was filed, it is construed as a proposed second

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amended complaint.

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The proposed second amended complaint does not contain the allegations found

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colorable against defendants in the first amended complaint. Plaintiff does not allege, for

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example, that defendant Valentine failed to adequately treat his staph infection. Rather, the

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proposed second amended complaint generally alleges that defendants failed to provide adequate

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medical care.

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Local Rule 220 requires that an amended complaint be complete in itself without

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reference to any prior pleading. This requirement exists because, as a general rule, an amended

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complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Because it is clear that plaintiff did not intend to abandon the claims in the first amended

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complaint found colorable by the court, plaintiff’s proposed second amended complaint is

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disregarded. In any event, the claims in the proposed second amended complaint of inadequate

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medical care are so vague and conclusory that they do not state a colorable claim for relief.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to file a

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supplemental complaint, construed as a motion for leave to file a second amended complaint,

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(Dkt. No. 57) is denied.

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DATED: April 14, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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tur3445.supp

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