UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 10, 2010
KELVIN X. SINGLETON,
A. HEDGEPATH, ET AL.,
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER WITHDRAWING PLAINTIFF'S
MOTION IN ITS ENTIRETY, WITHOUT
PREJUDICE TO RENEWAL WITHIN THIRTY DAYS (Doc. 73.)
ORDER DENYING PLAINTIFF'S REQUEST TO PARTIALLY WITHDRAW MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT
Plaintiff Kelvin X. Singleton ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 18, 2008. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed on February 12, 2009, against defendants CMO A. Youssef, CMO S. Lopez, Dr. J. Akanno, Dr. S. Qamar, Dr. Vasquez, RN II M. Ali, and RN II M. Wright-Pearson for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment.*fn1 (Doc. 26.)
On June 11, 2010, Plaintiff filed a motion for leave to supplement his complaint with claims occurring after the filing of this action. (Doc. 73.) On June 24, 2010, defendants Ali, Akanno, Youssef and Lopez filed an opposition to the motion. (Doc. 78.) On November 8, 2010, Plaintiff filed a request to partially withdraw his motion. (Doc. 104.)
Plaintiff seeks to withdraw some of the claims he proposed adding in his June 11, 2010 motion for leave to file a supplemental complaint. To avoid confusion of the issues and prejudice to defendants, the Court elects to withdraw Plaintiff's June 11, 2010 motion in its entirety and grant Plaintiff leave to submit a new motion for leave to supplement the complaint, clearly setting out the specific claims he proposes to include in the supplemental complaint. Plaintiff is advised that he will not be granted leave to add unrelated claims or claims that have not been administratively exhausted. When considering whether to allow a supplemental complaint, the Court also considers factors such as whether allowing supplementation would serve the interests of judicial economy; whether there is evidence of delay, bad faith or dilatory motive on the part of the movant; whether amendment would impose undue prejudice upon the opposing party; and whether amendment would be futile. See San Luis & Delta-Mendota Water Authority v. United States Department of the Interior, 236 F.R.D. 491, 497 (E.D. Cal. 2006) (citing Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988), Foman v. Davis, 371 U.S. 178 (1962), and Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400 (9th Cir. 1997)).
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff's November 8, 2010 request to partially withdraw his June 11, 2010 motion for leave to file a supplemental complaint is DENIED;
2. Plaintiff's June 11, 2010 motion for leave to file a supplemental complaint is WITHDRAWN in its entirety, without prejudice;
3. Plaintiff is GRANTED leave to renew his motion within thirty days from the date of service of this order, as instructed by this order.