United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS DENYING, WITHOUT
PREJUDICE, PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT (ECF No. 24) FOURTEEN (14) DAY OBJECTION
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 28 U.S.C.
§ 1983. The case proceeds on Plaintiff's first
amended complaint against Defendants Neibert, Ronquillo, and
Walinga for excessive force, against Defendant Waddle for
failure to protect, in violation of the Eighth Amendments of
the Constitution and against Defendant Lesniak for violating
Plaintiff's Fourteenth Amendment procedural due process
rights during a rules violation hearing, . (ECF Nos. 4 & 7.)
to the scheduling order filed on September 1, 2015, the
deadline to amend the pleadings was March 1, 2016. (ECF No.
17.) On December 16, 2015, Plaintiff filed a timely motion
seeking leave to file a supplemental complaint, or in the
alternative, a second amended complaint, adding Lt. B. L.
Parriott as a defendant. Fed.R.Civ.P. 15(a)(2). (ECF No. 24.)
On January 6, 2016, Defendants filed an opposition. (ECF No.
26.) Plaintiff did not file a reply, however he lodged a
"supplemental complaint" with the Court on January
13, 2016. (ECF No. 29.) The matter is submitted. Local Rule
claims arise out of events that occurred while he was
incarcerated at Kern Valley State Prison ("KVSP")
in Delano, California. He names the following correctional
officers as Defendants in his first amended complaint: Lt. C.
Waddle, Sgt. Neibert, Officer J. Walinga, Officer Ronquillo,
and Lt. Lesniak. Plaintiff's allegations in his first
amended complaint may be summarized as follows:
14, 2014, went to see Defendant Waddle because he was
concerned about his safety, as he believed rival gang members
wanted to hurt him. Defendant Waddle dismissed
Plaintiff's fears and instructed Defendants Neibert,
Walinga, and Ronquillo to escort Plaintiff back to his cell.
Plaintiff was allegedly assaulted by Defendants Neibert,
Walinga, and Ronquillo while they were in the process of
transporting Plaintiff. On May 22, 2014, Plaintiff received a
rule violation report (RVR) for battery on a peace officer in
connection with this incident. On June 4, 2014, Defendant
Lesniak, the Senior Hearing Officer ("SHO"),
adjudicated the RVR. Defendant Lesniak found Plaintiff guilty
of battery on a peace officer and sentenced him to an
eighteen month term in the Security Housing Unit
("SHU") at the California Correctional Institute
("CCI") in Tehachapi, California. Plaintiff alleges
that Defendant Lesniak deprived Plaintiff of due process
during the hearing when he refused to consider any of
Plaintiff's witness statements, refused to admit
Plaintiff's written statement on the record, and denied
Plaintiff's request for video footage.
now seeks to file a supplemental complaint, or in the
alternative a second amended complaint, to reflect the
following additional facts: on July 24, 2014, Plaintiff
appealed Defendant Lesniak's findings in the RVR hearing.
Plaintiff's appeal was partially granted at the second
level, but he was told by Defendant Lesniak that his RVR
would not be reheard. On October 1, 2014, Plaintiff was
transferred from KVSP to the SHU at CCI. Upon Plaintiff's
arrival at CCI, he sought help from his correctional
counselor regarding the rehearing of his RVR. On November 18,
2014, Plaintiff was reissued the RVR for battery on a peace
officer, at which time Plaintiff requested the assistance of
an investigative employee ("IE") and requested
copies of his previous IE report. On November 20, 2014,
Plaintiff was handcuffed and taken to an empty chow hall and
placed in a holding cage. Lt. Parriott arrived and told
Plaintiff he would conduct the rehearing on the RVR right
then and there. Plaintiff objected that he was not prepared
and had not met with his IE, to which Lt. Parriott replied,
he was be Plaintiff's IE. Lt. Parriott told Plaintiff he
would not consider any statements made by Plaintiff or his
witnesses, and forced Plaintiff to sign a "waiver of
witnesses." Lt. Parriott said he would credit any
statement made by Defendant Waddle, as she was a friend of
his, over any statements made by Plaintiff or his witnesses.
Lt. Parriott also denied Plaintiff's request to admit
video surveillance footage, saying the video cameras were not
working on the date of the incident. Lt. Parriott assured
Plaintiff that if Plaintiff called one witness in particular,
gun tower control Officer P. Madrano, and that witness
corroborated Plaintiff's story, Lt. Parriott would find
Plaintiff not guilty of the RVR.
November 21, 2014, at Plaintiff's official rehearing, Lt.
Parriott found Plaintiff guilty of the RVR and sentenced him
to an additional SHU term. Plaintiff states that Lt. Parriott
doctored and falsified information contained within his
original RVR in order to cover up certain procedural
violations in the rehearing of the RVR. On December 7, 2014,
Plaintiff appealed the second RVR hearing on the ground that
Lt. Parriott denied Plaintiff due process; the final appeal
was ultimately denied on June 19, 2015.
may file a supplemental pleading "setting out any
transaction, occurrence, or event that happened after the
date of the pleading to be supplemented." Fed.R.Civ.P.
15(d). Here, Plaintiff seeks to add conduct that occurred on
November 20 and 21, 2014. However, the pleading to be
supplemented-Plaintiff's first amended complaint- was
filed on January 14, 2015. The Court therefore construes
Plaintiff's motion as a request for leave to file an
may amend its pleading once as a matter of course at any time
before a responsive pleading is served and up to twenty-one
days after service of a responsive pleading. Fed.R.Civ.P.
15(a)(1)(B). 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)(2). In this case, a responsive pleading
has been served. Therefore, Plaintiff may not file a second
amended complaint without leave of court.
Rule 220 requires that an amended complaint be complete in
itself without reference to any prior pleading. As a general
rule, an amended complaint supersedes the original complaint.
See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
Once an amended complaint is filed, the original complaint no
longer serves any function in the case. Therefore, in an
amended complaint, as in an original complaint, each claim
and the involvement of each defendant must be sufficiently
15(a) is very liberal and leave to amend ‘shall be
freely given when justice so requires.'"
AmerisourceBergen Corp. v. Dialysis West, Inc., 465
F.3d 946, 951 (9th Cir. 2006) (quoting Fed.R.Civ.P. 15(a)).
In determining whether to grant leave to amend, courts
generally consider four factors: (1) bad faith, (2) undue
delay, (3) prejudice to the opposing party, and (4) futility
of amendment. In re Korean Airlines Co., Ltd., 642
F.3d 685, 701 (9th Cir. 2011) (citing Kaplan v.
Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)) (quotation
marks omitted); also Foman v. Davis, 371 U.S. 178,
182 (1962); Waldrip v. Hall, ...