Holt v. MacArthur et al

Filing 21

ORDER (1) granting 16 Motion for Leave to File Supplemental Complaint; and (2) Directing US Marshal to Effect Service of Complaint and Supplemental Complaint. Signed by Judge Irma E. Gonzalez on 11/07/11. (Documents sent to Plaintiff) (All non-registered users served via U.S. Mail Service)(cge) (Main Document 21 replaced on 11/8/2011) (cge).

Case 3:11-cv-01502-IEG -CAB Document 21

Filed 11/07/11 Page 1 of 3

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

TRACY HOLT,
Plaintiff,

12
13

CASE NO. 11-cv-1502 – IEG (CAB)
ORDER:
(1) GRANTING MOTION FOR
LEAVE TO FILE SUPPLEMENTAL
COMPLAINT [Doc. No. 16]; and

vs.

14

(2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF COMPLAINT
and SUPPLEMENTAL COMPLAINT
PURSUANT TO 28 U.S.C. § 1915(d)
and Fed. R. Civ. P. 4(c)(3).

15

20

MacARTHUR, Registered Nurse;
CALDERON, Registered Nurse; STEWART,
Registered Nurse; HUNT, Medical Doctor;
SEDEGHI, Medical Doctor also known as
Sedighi; SEELY, Medical Doctor; CANLAS,
Medical Doctor; and UNKNOWN
DOCTORS AND CHIEF MEDICAL
OFFICER (CMO) making up Medical
Committee, to be named later, upon
discovery,

21

Defendants.

16
17
18
19

22
23

Currently before the Court is Plaintiff’s Motion for Leave to File Supplemental Complaint.

24

[Doc. No. 16.] Rule 15(d) of Federal Rules of Civil Procedure provides that “[o]n motion and

25

reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading

26

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

27

supplemented.” In this case, Plaintiff wishes to supplement his complaint with allegations of

28

events that occurred after he filed his complaint and that demonstrate a continuing violation of his
-1-

11cv1502-IEG (CAB)

Case 3:11-cv-01502-IEG -CAB Document 21

Filed 11/07/11 Page 2 of 3

1

civil rights. Plaintiff also alleges that he is now under the care of a new and different doctor, who

2

is also being deliberately indifferent to Plaintiff’s serious medical needs. Accordingly, Plaintiff

3

wishes to add this new doctor as a defendant. Finding GOOD CAUSE, the Court GRANTS

4

Plaintiff’s motion to supplement his complaint. See Fed. R. Civ. P. 15(d).

5

The Court previously granted Plaintiff leave to proceed in forma pauperis (“IFP”). [See

6

Doc. No. 4.] The Prison Litigation Reform Act (“PLRA”) obligates the Court to review

7

complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are

8

“incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated

9

delinquent for, violations of criminal law or the terms or conditions of parole, probation,

10

pretrial release, or diversionary program,” “as soon as practicable after docketing.” See 28

11

U.S.C. §§ 1915(e)(2), 1915A. Under these provisions of the PLRA, the Court must sua

12

sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to

13

state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§

14

1915(e)(2)(B), 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc);

15

Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

16

As currently pleaded, the Court finds Plaintiff’s allegations in the Supplemental

17

Complaint sufficient to survive the sua sponte screening required by 28 U.S.C.

18

§§ 1915(e)(2) and 1915A(b).1 See Lopez, 203 F.3d at 1126-27. Accordingly, the Court

19

finds that Plaintiff is entitled to U.S. Marshal service on his behalf as to the newly added

20

Defendant Doctor Akbari. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
CONCLUSION

21
22

Good cause appearing therefor, IT IS HEREBY ORDERED that:

23

1.

Plaintiff’s Motion for Leave to File Supplemental Complaint is GRANTED.

24

[Doc. No. 16.] The Clerk of Court is directed to file Plaintiff’s Supplemental Complaint,

25

attached to Plaintiff’s current motion, on the docket.

26

2.

The Clerk shall issue a summons as to Plaintiff’s Complaint, [Doc. No. 1],

27
1

28

Plaintiff is cautioned, however, that “the sua sponte screening and dismissal procedure is
cumulative of, not a substitute for, any subsequent Rule 12[] motion that [a] defendant may choose
to bring.” See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
-2-

11cv1502-IEG (CAB)

Case 3:11-cv-01502-IEG -CAB Document 21

Filed 11/07/11 Page 3 of 3

1

and Supplemental Complaint upon Defendant Akbari and shall forward it to Plaintiff along

2

with a blank U.S. Marshal Form 285. In addition, the Clerk shall provide Plaintiff with a

3

certified copy of this Order and a certified copy of his Complaint, Supplemental Complaint,

4

and summons so that he may serve Defendant Akbari. Upon receipt of this “IFP Package,”

5

Plaintiff is directed to complete the Form 285s as completely and accurately as possible,

6

and to return them to the United States Marshal according to the instructions provided by

7

the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall

8

serve a copy of the Complaint, Supplemental Complaint, and summons upon Defendant

9

Akbari as directed by Plaintiff on the USM Form 285s. All costs of service shall be

10
11

advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
6.

Defendant Akbari is thereafter ORDERED to reply to Plaintiff’s Complaint

12

and Supplemental Complaint within the time provided by the applicable provisions of

13

Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2). The remaining

14

Defendants are ORDERED to reply to Plaintiff’s Supplemental Complaint within the time

15

remaining to reply to Plaintiff’s original Complaint.

16

7.

Plaintiff is reminded that with the exception of the initial summons and

17

service of the complaint, he must serve upon the Defendants or, if appearance has been

18

entered by counsel, upon Defendants’ counsel, a copy of every further pleading or other

19

document submitted for consideration of the Court. As such, with the exception of

20

Defendant Akbari, Plaintiff must serve upon the remaining Defendants or their

21

counsel a copy of the Supplemental Complaint. Plaintiff shall include with the original

22

paper to be filed with the Clerk of the Court a certificate stating the manner in which a true

23

and correct copy of any document was served on Defendants, or counsel for Defendants,

24

and the date of service. Any paper received by the Court which has not been filed with the

25

Clerk or which fails to include a Certificate of Service will be disregarded.

26
27
28

IT IS SO ORDERED.
Date: November 7, 2011

________________________________
IRMA E. GONZALEZ, Chief Judge
United States District Court
-3-

11cv1502-IEG (CAB)