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Tracy Holt v. Macarthur

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 7, 2011

TRACY HOLT,
PLAINTIFF,
v.
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, DEFENDANTS.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) GRANTING MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT [Doc. No. 16]; and (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).

Currently before the Court is Plaintiff's Motion for Leave to File Supplemental Complaint. [Doc. No. 16.] Rule 15(d) of Federal Rules of Civil Procedure provides that "[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." In this case, Plaintiff wishes to supplement his complaint with allegations of events that occurred after he filed his complaint and that demonstrate a continuing violation of his civil rights. Plaintiff also alleges that he is now under the care of a new and different doctor, who is also being deliberately indifferent to Plaintiff's serious medical needs. Accordingly, Plaintiff wishes to add this new doctor as a defendant. Finding GOOD CAUSE, the Court GRANTS Plaintiff's motion to supplement his complaint. See Fed. R. Civ. P. 15(d).

The Court previously granted Plaintiff leave to proceed in forma pauperis ("IFP"). [See Doc. No. 4.] The Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2), 1915A. Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

As currently pleaded, the Court finds Plaintiff's allegations in the Supplemental Complaint sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).*fn1 See Lopez, 203 F.3d at 1126-27. Accordingly, the Court finds that Plaintiff is entitled to U.S. Marshal service on his behalf as to the newly added Defendant Doctor Akbari. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

CONCLUSION

Good cause appearing therefor, IT IS HEREBY ORDERED that:

1. Plaintiff's Motion for Leave to File Supplemental Complaint is GRANTED. [Doc. No. 16.] The Clerk of Court is directed to file Plaintiff's Supplemental Complaint, attached to Plaintiff's current motion, on the docket.

2. The Clerk shall issue a summons as to Plaintiff's Complaint, [Doc. No. 1], and Supplemental Complaint upon Defendant Akbari and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order and a certified copy of his Complaint, Supplemental Complaint, and summons so that he may serve Defendant Akbari. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to return them to the United States Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall serve a copy of the Complaint, Supplemental Complaint, and summons upon Defendant Akbari as directed by Plaintiff on the USM Form 285s. All costs of service shall be 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 and Supplemental Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2). The remaining Defendants are ORDERED to reply to Plaintiff's Supplemental Complaint within the time remaining to reply to Plaintiff's original Complaint.

7. Plaintiff is reminded that with the exception of the initial summons and service of the complaint, he must serve upon the Defendants or, if appearance has been entered by counsel, upon Defendants' counsel, a copy of every further pleading or other document submitted for consideration of the Court. As such, with the exception of Defendant Akbari, Plaintiff must serve upon the remaining Defendants or their counsel a copy of the Supplemental Complaint. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of any document was served on Defendants, or counsel for Defendants, and the date of service. Any paper received by the Court which has not been filed with the Clerk or which fails to include a Certificate of Service will be disregarded.

IT IS SO ORDERED.


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