UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 11, 2012
M. D. BITER, ET AL.,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING MOTION FOR LEAVE TO
FILE SUPPLEMENTAL COMPLAINT IN THE
FUTURE, AUTHORIZING SERVICE OF ORIGINAL COMPLAINT, AND
FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR
RETURN WITHIN THIRTY DAYS
(Docs. 1, 2, 37, and 64)
Plaintiff Anthony Nguyen, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 18, 2011. The Court screened Plaintiff's original complaint pursuant to 28 U.S.C. § 1915A and found that it stated an Eighth Amendment claim against Defendant Biter.*fn1 Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007). Plaintiff subsequently amended once as a matter of right and on August 6, 2012, in response to the Court's second screening order requiring him to either file a second amended complaint or notify the Court of his willingness to proceed on his original complaint, Plaintiff elected to proceed on his original complaint. In addition, Plaintiff requested leave to file a supplemental complaint in the future.
Plaintiff is not precluded from filing a motion seeking leave to file a supplemental complaint in the future, accompanied by a proposed supplemental complaint. Fed. R. Civ. P. 15(d). However, Plaintiff may not obtain leave at this juncture to file, at some unknown future date, a supplemental pleading setting forth unknown claims. Leave to file a supplemental complaint will be granted only if Plaintiff makes the requisite showing under Rule 15(d). Further, Plaintiff has already been informed that he will not be permitted to amend to add unrelated claims against unrelated parties. (Docs. 58, 63.)
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's motion for leave to file a supplemental complaint in the future is denied, without prejudice;
2. Service shall be initiated on the following defendant: WARDEN M. D. BITER
3. The Clerk of the Court shall send Plaintiff one (1) USM-285 form, one (1) summons, a Notice of Submission of Documents form, an instruction sheet and a copy of the complaint filed on May 18, 2011.
4. Within thirty (30) days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:
a. One completed summons;
b. One completed USM-285 form; and
c. Two (2) copies of the endorsed complaint filed May 18, 2011 (court documents 1 and 2).
5. Plaintiff need not attempt service on the defendant and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
6. The failure to comply with this order will result in dismissal of this action.
IT IS SO ORDERED.