Alverto v. Department of Corrections et al
Filing
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ORDER denying Plaintiff's 21 Motion to Supplement the Complaint. Plaintiff may file a Second Amended Complaint on or before December 7, 2012. If plaintiff fails to submit a complete Second Amended Complaint by that date, this action will proceed on the Amended Complaint (ECF No. 14). Signed by Magistrate Judge Karen L Strombom.(CMG; cc to Plaintiff)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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JEROME CEASAR ALVERTO,
Plaintiff,
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v.
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DEPARTMENT OF CORRECTIONS,
BARBARA J GRONSETH, STATE OF
WASHINGTON, CATHY ALPIN,
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ORDER DENYING MOTION TO
“SUPPLEMENT” COMPLAINT AND
GRANTING LEAVE TO FILE
SECOND AMENDED COMPLAINT
Defendants.
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CASE NO. C12-5518 BHS-KLS
Before the Court is Plaintiff’s “Motion to Supplement Original Complaint. ECF No. 21.
Plaintiff moves to supplement his allegations against Defendant Barbara Gronseth to add a
retaliation claim against Defendant Gronseth stemming from an incident that occurred in the law
library on October 2, 2012. Id. Defendants do not object to the amendment. ECF No. 29.
Pursuant to Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) 15(a), “[a] party may
amend the party’s pleading once as a matter of course within 21 days after serving it, or 21 days
after service of a responsive pleading, or 21 days after service of a motion under Rule 12(b), (e),
or (f), whichever is earlier. In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The Court should freely give leave when
justice so requires. Fed.R.Civ.P. 15(a)(1)(A)(B) and (2). After a responsive pleading has been
filed, “leave to amend should be granted unless amendment would cause prejudice to the
opposing party, is sought in bad faith, is futile, or creates undue delay.” Martinez v. Newport
Beach City, 125 F.3d 777, 786 (9th Cir. 1997). The decision to allow a party to amend its
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ORDER - 1
1 complaint after the period when the party may do so as a matter of right lies within the sound
2 discretion of the trial court. United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).
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Accordingly, Plaintiff may file a Second Amended Complaint in order to include the
4 retaliation claim against Defendant Gronseth. No further amendments shall be allowed. In
5 addition, Plaintiff is advised that the First Amended Complaint will operate as a complete
6 substitute for (rather than a mere supplement to) the Amended Complaint (ECF No. 14). In other
7 words, an amended complaint supersedes the original in its entirety, making the original as if it
8 never existed. Therefore, reference to a prior pleading or another document is unacceptable –
9 once Plaintiff files an amended complaint, the original pleading or pleadings will no longer serve
10 any function in this case. Therefore, Plaintiff’s request to “supplement” his amended complaint
11 is denied. Plaintiff must file a new and complete complaint – which he should title “Second
12 Amended Complaint.” All claims and the involvement of every defendant should be included in
13 the Second Amended Complaint; otherwise, the claims will no longer exist.
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Accordingly, it is ORDERED:
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(1)
Plaintiff’s Motion to Supplement (ECF No. 21) is DENIED. Plaintiff may file a
16 Second Amended Complaint on or before December 28, 2012. If Plaintiff fails to submit a
17 complete Second Amended Complaint by that date, this action will proceed on the Amended
18 Complaint (ECF No. 14).
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(2)
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DATED this 30th day of November, 2012.
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The Clerk shall send a copy of this Order to Plaintiff and counsel for Defendants.
A
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Karen L. Strombom
United States Magistrate Judge
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ORDER - 2
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