(PC) Dao v. Tabor

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 CUONG HUY DAO, No. 2: 22-cv-0846 KJN P 12 Plaintiff, 13 v. ORDER 14 P. TABOR, et al., 15 Defendants. — 16 — 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983 . Pending before the court is plaintiff’s December 12, 2022 request for 19 clarification regarding whether he should file a supplemental complaint. (ECF No. 26.) 20 This action proceeds on the original complaint against defendants Tabor and Hibbard. 21 (ECF Nos. 1, 11.) Plaintiff alleges that on February 5, 2020, defendants used excessive force 22 against plaintiff. (Id.) Plaintiff also alleges that defendants solicited a white prisoner to attack 23 plaintiff. (Id.) 24 In the pending request, plaintiff alleges that he has new evidence against defendant Tabor. 25 (ECF No. 26.) Plaintiff alleges that while plaintiff was housed in the COVID-19 isolation unit, 26 plaintiff was near death for a few days. (Id.) Plaintiff alleges that defendant Tabor drugged and 27 poisoned plaintiff, assaulted plaintiff, and re-infected plaintiff with COVID-19. (Id.) Plaintiff 28 seeks information regarding whether he can add these new claims against defendant Tabor to the 1 || pending action or whether he must file a new action with these new claims. (Id.) 2 Federal Rule of Civil Procedure 15(d) provides the mechanism for supplemental pleading: 3 Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental 4 pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be 5 supplemented. 6 || Fed.R.Civ.P. 15(d). 7 “While leave to permit supplemental pleading is ‘favored,’” Planned Parenthood of 8 | Southern Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (quoting Keith v. Volpe, 858 F.2d 9 | 467, 473 (Oth Cir. 1988)), “it cannot be used to introduce a ‘separate, distinct and new cause of 10 || action.’” Id. (quoting Berssenbrugge v. Luce Mfg. Co., 30 F.Supp. 101, 102 (D.Mo.1939)); see 11 | also, 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and 12 || Procedure: Civil 2D § 1509 (1990) (noting that leave to file a supplemental pleading will be 13 || denied where “the supplemental pleading could be the subject of a separate action”). 14 If plaintiff's new claims against defendant Tabor are unrelated to the claims against 15 || defendant Tabor on which this action now proceeds, they should be raised in a separate action. 16 || However, the undersigned would need to review plaintiff's proposed supplemental complaint in 17 || order to make a final determination regarding this matter. 18 Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for clarification (ECF 19 || No. 26) is deemed resolved. 20 || Dated: January 4, 2023 71 AO Norra 22 KENDALL J. Wha UNITED STATES MAGISTRATE JUDGE — 23 — — 24 — — 25 — Dao846.inf — 26 — — 27 — — 28 —