Glosson v. Virga et al

Filing 32

ORDER signed by Magistrate Judge Craig M. Kellison on 06/25/12 denying 19 Motion for sanctions and denying 28 Motion for leave to amend. (Plummer, 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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JOSEPH LEE GLOSSON,

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Plaintiff,

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vs.

ORDER

A.K. STINSON, et al.,

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Defendants.

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/

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No. 2:11-CV-1743-KJM-CMK-P

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983.

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Plaintiff seeks sanctions (Doc. 19) against defendants for failing to file a response

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to his amended complaint. A review of the docket reflects, however, that defendants in fact filed

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an answer and that the answer was timely. Specifically, on March 7, 2012, the court granted

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defendants’ request for an extension of time to March 27, 2012, to file their answer. Defendants’

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answer was filed on March 26, 2012. Plaintiff’s motion for sanctions will, therefore, be denied.

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Plaintiff also seeks leave to amend (Doc. 28).1 Specifically, plaintiff seeks to

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include Engellenner as a defendant to this action. Plaintiff claims that Engellenner knew of a

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lower bunk chrono contained in plaintiff’s central file and ignored that chrono when assigning

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plaintiff to his housing unit in a top bunk. Though the court previously dismissed Engellenner

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for failure to state a claim because plaintiff failed to allege facts which would show that

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Engellenner had any actual knowledge of the lower bunk chrono, plaintiff now argues that, under

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California Code of Regulations, Title 15, § 3269(b), he was required to examine plaintiff’s

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central file and, therefore, must have seen the lower bunk chrono. As defendants note in their

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opposition to plaintiff’s motion for leave to amend, § 3269 applies only to housing assignments

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for inmates newly arriving at the prison. It does not apply in this case because the housing

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assignment in question was incident to a move from one housing unit to another in the same

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prison and not incident to plaintiff having newly arrived at the prison. Plaintiff has not presented

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any new factual allegations which would change the court’s prior analysis as to Engellenner.

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By separate order the court will set an initial schedule for this case.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for sanctions (Doc. 19) is denied; and

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Plaintiff’s motion for leave to amend (Doc. 28) is denied.

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DATED: June 25, 2012

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______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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As defendants correctly note, plaintiff’s motion is entitled a motion to file a
supplemental complaint. That procedure is applicable where a plaintiff wishes to include
allegations concerning events occurring after the original complaint was filed. Because plaintiff
seeks to add a defendant who is alleged to have participated in the same occurrences as described
in the original pleading, plaintiff’s motion is construed as a motion for leave to amend.
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