Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Kelvin Felton v. J. Lopez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 3, 2013

KELVIN FELTON,
PLAINTIFF,
v.
J. LOPEZ, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S RENEWED MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT (Doc. 19.) THIRTY DAY DEADLINE TO FILE SUPPLEMENTAL COMPLAINT AS INSTRUCTED BY THIS ORDER

I. BACKGROUND

Kelvin Felton ("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 the Complaint commencing this action on June 29, 2012. (Doc. 1.)

On August 24, 2012, Plaintiff filed a motion for leave to file a supplemental complaint, to add allegations of excessive force against defendant C/O J. Lopez based on an incident occurring after the original Complaint was filed on June 29, 2012. (Doc. 10.) Plaintiff provided a copy of a Form-602 inmate appeal which he submitted on July 20, 2012, in which he alleges that on July 20, 2012, as he was leaving the dining hall, C/O J. Lopez pushed him from behind for no reason and extended his baton, attempting to provoke an altercation. (Id. at 3-4.) On February 13, 2013, the Court denied Plaintiff's motion for leave to supplement the complaint, without prejudice to renewal of the motion with Plaintiff's declaration, signed under penalty of perjury, that he exhausted all available administrative remedies for the new excessive force claim against defendant C/O Lopez. (Doc. 12.)

On March 13, 2013, Plaintiff filed a renewed motion for leave to file a supplemental complaint, together with a declaration addressing the exhaustion issue. (Doc. 16.) However, Plaintiff's declaration was not signed under penalty of perjury as required by the Court. On March 18, 2013, the Court denied Plaintiff's renewed motion, without prejudice to renewal of the motion with Plaintiff's declaration signed under penalty of perjury stating that he attempted, but was prevented from, exhausting administrative remedies for the later-occurring incident he seeks to add to the Complaint. (Doc. 17.) On April 1, 2013, Plaintiff filed a renewed motion for leave to file a supplemental complaint, together with a declaration addressing the exhaustion issue and signed under penalty of perjury. (Docs. 19, 20.)

Plaintiff's renewed motion for leave to file a supplemental complaint is now before the Court.

II. MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT

A supplemental complaint, which is different than an amended complaint, adds allegations to the complaint of events occurring after the original complaint was filed. Fed. R. Civ. P. 15(d). Under Rule 15(d), "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." Id. A party may only file a supplemental complaint with leave of court. Id. When considering whether to allow a supplemental complaint, the Court 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)).

Discussion

Plaintiff shall be granted leave to file a supplemental complaint adding allegations of excessive force against defendant C/O J. Lopez based on an incident occurring on July 20, 2012, as documented by the CDC-602 form Plaintiff submitted with his August 24, 2012 motion. (Doc. 10 at 3-4.)

On February 13, 2013, the Court found that Plaintiff's Complaint filed on June 29, 2012 states cognizable claims for excessive force against defendants C/O Lopez and C/O Harrison. (Doc. 13.)

In the August 24, 2012 motion for leave to supplement the Complaint, Plaintiff indicates that defendant C/O Lopez continues to use force unnecessarily against him, and Plaintiff wishes to make additional allegations against Lopez for excessive force which occurred after the original Complaint was filed. The Court finds that supplementation of the Complaint with these new allegations would serve the interests of judicial economy because Plaintiff's related claims would be included in one lawsuit. It appears from Plaintiff's declaration signed under penalty of perjury, in which Plaintiff states that he attempted to exhaust administrative remedies for the July 20, 2012 incident, that Plaintiff exhausted the remedies available to him. (Doc. 20.)

Based on the foregoing, the Court shall grant Plaintiff's renewed motion to file a supplemental complaint, for the purpose of adding allegations of excessive force against defendant C/O J. Lopez based on an incident occurring on July 20, 2012.

III. CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's renewed motion to file a supplemental complaint, filed on April 1, 2013, is GRANTED, for the sole purpose of adding allegations of excessive force against defendant C/O J. Lopez based on an incident occurring on July 20, 2012, as documented by the CDC-602 form Plaintiff submitted with his August 24, 2012 motion;

2. Plaintiff is granted thirty days from the date of service of this order in which to file a supplemental complaint as described in this order; and

3. Plaintiff's failure to comply with this order shall result in a recommendation that this action be dismissed for failure to comply with a court order.

IT IS SO ORDERED.

20130403

© 1992-2013 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.