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Pleasant v. Merced County Board of Supervisors

February 13, 2009

TERRY K. PLEASANT, PLAINTIFF,
v.
MERCED COUNTY BOARD OF SUPERVISORS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER ON MOTION TO SUPPLEMENT PLEADING, AND FINDINGS AND RECOMMENDATIONS FOLLOWING SCREENING OF AMENDED COMPLAINT

(Doc. 28)

ORDERING DISREGARDING AS MOOT DEFENDANTS' MOTION TO DISMISS (Docs. 32, 33) OBJECTIONS, IF ANY, DUE IN FIFTEEN (15) DAYS

I. Procedural History

Plaintiff Terry K. Pleasant ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 5, 2007. On April 25, 2008, the Court issued an order directing the United States Marshal to serve process on defendants Merced County Board of Supervisors and Merced County Sheriff's Department ("Defendants"). On May 14, 2008, Plaintiff filed a motion to supplement his pleading. (Doc. 28). On June 27, 2008, Defendants filed a motion to dismiss. Both motions are pending before the Court.

II. Motion to Supplement Pleading

In his motion to supplement his pleading, filed May 14, 2008, Plaintiff states that he wishes to amend his pleading to add a request for injunctive relief, to set forth arguments in support of the Court's supplemental jurisdiction over his state law claims, and to set forth new events that have occurred since the filing of his original complaint. Plaintiff moves for leave pursuant to Fed. R. Civ. Pro. 15(d). Plaintiff has attached to his motion a copy of his proposed supplemental pleading.

In his supplemental pleading, Plaintiff alleges a violation of the Eighth and Fourteenth Amendments and requests injunctive and declaratory relief. Upon review, it does not appear that Plaintiff has alleged events that have occurred since the filing of his original complaint. Plaintiff's motion is properly a motion to amend his complaint, pursuant to Rule 15(a), and not a motion to supplement his pleading pursuant to Rule 15(d).

Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, a responsive pleading had not been served at the time Plaintiff filed his motion, and Plaintiff had not previously amended his complaint. Therefore, Plaintiff may file an amended complaint without leave of the court.

Plaintiff has attempted to incorporate by reference in his amended complaint all his allegations in his original complaint filed March 5, 2007. Plaintiff is advised that the Court normally does not allow for piecemeal submissions of a complaint.*fn1 In this instance however, for the sake of expediency, the Court shall permit Plaintiff's complaint as filed.

Accordingly, the operative pleading in his case is Plaintiff's amended complaint, submitted May 14, 2008, which incorporates by reference Plaintiff's original complaint, filed March 5, 2007. (Docs. 28, 1).

III. Screening Requirement

As Plaintiff is already aware, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff has amended his complaint, and the Court shall now screen his amended complaint.

The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. ยง 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . ...


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