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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHRISTOPHER LEE, Case No. 09-10723

Plaintiff, Avern Cohn

vs. United States District Judge

THOMAS BIRKETT, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

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ORDER ON PLAINTIFF’S MOTIONS

TO AMEND COMPLAINT (Dkt. 25, 33, 41)

This is a prisoner civil rights action filed on February 26, 2009. (Dkt. 1).

Plaintiff alleges that defendants failed to provide sanitary prison conditions which

posed a threat to his health in violation of his constitutional rights. This case was

referred to the undersigned on April 30, 2009, for all pretrial purposes. (Dkt. 9). 

Plaintiff has filed three motions to amend his complaint. (Dkt. 25, 33, 41). 

While plaintiff’s motions purport to be filed pursuant to Rule 15(a), they are in the

nature of both a motion to amend under Rule 15(a) and a motion to supplement

under Rule 15(d). Rule 15( d) provides that “[o]n motion and reasonable notice,

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

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pleading to be supplemented. Fed.R.Civ.P. 15(d). As the plain language of the

rule indicates, “supplemental pleadings, not amended pleadings, are intended to

cover matters occurring after the original complaint was filed.” Murphy v.

Grenier, 2009 WL 1044832 (E.D. Mich. 2009), citing, United States ex rel. Kinney

v. Stoltz, 327 F.3d 671, 673 n. 4 (8th Cir. 2003); United States v. Hicks, 283 F.3d

380, 385 (D.C. Cir. 2002); Flaherty v. Lang, 199 F.3d 607, 614 n. 3 (2d Cir. 1999). 

In plaintiff’s motions to amend, he refers to new claims based on several

grievances, some of which appear to have been initiated and exhausted before this

lawsuit was filed and some of which were not exhausted before this suit was filed,

have been since exhausted. (Dkt. 25, 33, 41). There is authority standing for the

proposition that plaintiff may not amend his complaint to bring claims that were

not exhausted prior to the initiation of the present lawsuit on February 26, 2009.

See e.g., Utley v. Campbell, 84 Fed.Appx. 627, *2 (6th Cir. 2003) (The district

court properly noted that the plaintiff “had not exhausted his administrative

grievances of the claims he sought to add until after this case was filed, and

therefore they could not be appended to this litigation.”); see also Freeman v.

Francis, 196 F.3d 641, 645 (6th Cir. 1999); Vandiver v. CMS, Inc., 2007 WL

2746815, *1 (W.D. Mich. 2007) (The plaintiff’s proposed amended complaint

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rejected because it was “based upon...additional grievances,” for which the

underlying events “did not occur until after plaintiff filed the present suit.”). 

There is also authority standing for the proposition that such a rule would

effectively, and improperly, bar a prisoner-plaintiff from seeking relief under Rule

15(d). In Murphy, supra, the magistrate judge recognized, and resolved, the

apparent conflict between Rule 15(d) and the case law cited above:

Defendants argument is as follows: the claims asserted in

an amended complaint relate back to the filing of the

original complaint, and thus the newly asserted claims

would be deemed to have been filed on December 10,

2007; as of this date, the newly asserted claims could not

have been exhausted, because they did not yet exist; an

inmate must complete exhaustion prior to filing the

action and may not complete exhaustion during the

pendency of the action, see Freeman v. Francis, 196 F.3d

641, 645 (6th Cir. 1999); plaintiff’s newly asserted

claims would therefore be subject to dismissal for failure

to exhaust administrative remedies; and accordingly

leave to amend would be futile.

Defendants’ extension of Freeman’s prohibition on

amending to allege exhaustion completed during the

pendency of an action to supplemental claims which are

fully exhausted at the time they are proposed would

render Rule 15(d) wholly inapplicable to prisoner

actions. By definition, any supplemental claim

permissible under Rule 15(d) arises after the original

complaint is filed, and therefore administrative remedies

will never have been exhausted at the time of the filing of

the original complaint. Thus, under defendants’ argument

the PLRA’s exhaustion requirement, 42 U.S.C. §

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1997e(a) and Freeman effectively repeal Rule 15(d) with

respect to prisoner actions. Nothing in the language of

either § 1997e(a) or Freeman compels this result, and had

Congress intended this result it would have spoken more

clearly on the matter. “‘[R]epeals by implication are not

favored’ and will not be presumed unless the ‘intention

of the legislation to repeal is clear and manifest.’”

National Ass'n of Home Builders v. Defenders of Wildlife,

551 U.S. 644 (2007) (quoting Watt v. Alaska, 451 U.S.

259, 267 (1981)); see also Posadas v. National City Bank

of N.Y., 296 U.S. 497, 503 (1936) (“The cardinal rule is

that repeals by implication are not favored.”).

Thus, “[i]n the absence of a clear statement from

Congress, [the Court is] reluctant to hold that the PLRA

implicitly amends a Federal Rule.” Jackson v. Stinnett,

102 F.3d 132, 135 (5th Cir. 1996). To be sure, such an

implicit amendment may be found if there is an

“irreconcilable conflict” between a provision of the

PLRA and the federal rule. See id. at 136. Such an

“irreconcilable conflict” exists between Rule 15(d) and

§ 1997e(a) only if the Court adopts the illogical position

that the supplemental claims were filed before they

existed. This is not a case, as in Freeman, where plaintiff

is attempting to circumvent the requirements of

§ 1997e(a) by adding facts to show subsequent

exhaustion of claims asserted in the original complaint.

Rather, plaintiff seeks to add new claims, based on events

occurring subsequent to the filing of the original

complaint, which appear fully exhausted at the time first

asserted in the proposed supplemental complaint.

Freeman does not prohibit these types of claims, and

defendants have pointed to no other decision which does.

Accordingly, the Court should conclude that plaintiff is

entitled to supplement his complaint to add these

apparently exhausted claims.

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Murphy, at *20 (parallel citations omitted). The undersigned agrees with the

analysis in Murphy. Thus, to the extent that plaintiff’s motions involve claims that

were either initiated or where any part of the exhaustion process took place after

this lawsuit was filed (February 26, 2009), his motions are to supplement under

Rule 15(d). To the extent that his motions involve claims where the underlying

events occurred before this suit was filed and the claims were fully exhausted

before this suit was filed, the motions fall under Rule 15(a). 

While the standard for granting leave to supplement is the same as for

granting leave to amend, Murphy, supra, in these circumstances, plaintiff has a

right to amend under Rule 15(a). Where “no defendant has yet filed a responsive

pleading to the original complaint,” a plaintiff is “entitled to amend his complaint

as of right pursuant to Fed.R.Civ.P. 15(a).” Reynolds-Bey v. Harris-Spicer, 2007

WL 1063304, *1 (W.D. Mich. 2007); see also Sousa v. Ferguson, 2005 WL

1796131 (W.D. Mich. 2005) (An “amendment as of right under Fed.R.Civ.P. 15(a)

can be forestalled only by the service of a ‘responsive pleading,’” and “a motion to

dismiss or for summary judgment is not considered to be a ‘responsive pleading’

for the purposes of Rule 15(a).”). Here, defendants have not filed a responsive

pleading; rather they have only filed a motion for summary judgment. Thus,

ordinarily, plaintiff would be able to amend his complaint under Rule 15(a)

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without leave of the Court. However, a motion to supplement under Rule 15(d) is

not an automatic right and requires leave of the Court.

To further confuse matters, in each motion to amend the complaint, plaintiff

sets out only the portion of the complaint purporting to be his supplemental or

amended claims. Local Rule 15.1 requires that “[a]ny amendment to a pleading,

whether filed as a matter of course or upon a motion to amend, must ... reproduce

the entire pleading as amended, and may not incorporate any prior pleading by

reference.” Local Rule 15.1 does not, however, appear to apply to supplemental

pleadings, but rather, only applies to amended pleadings. In the interests of

efficiency and completeness, the Court orders plaintiff to submit one complete

pleading with all of his proposed claims that he seeks to move forward in this

litigation, whether they can be characterized as “amended,” “supplemental,” or part

of the original complaint.

Defendants also argue that plaintiff seeks to join claims and parties

improperly under Rule 20, which provides in part that “all persons...may join in

one action as defendants if there is asserted against them jointly, severally, or in the

alternative, any right to relief in respect of or arising out of the same transaction,

occurrence, or series of transactions or occurrences and if any question of law or

fact common to all defendants will arise in the action.” Two questions are raised

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by defendants’ argument. The first is whether misjoinder can provide a basis for

the Court to disallow an amendment as of right and the second is whether the

proposed parties and claims would be properly joined to the instant case. In light

of the Court’s conclusions, the Court need not reach these two issues at this time,

but will consider these issues after plaintiff submits his proposed amended and

supplemental complaint.

Based on the foregoing, the Court orders plaintiff to file one complete

pleading with all of the proposed claims that he seeks to move forward in this

litigation, whether they can be characterized as “amended,” “supplemental,” or part

of the original complaint. This pleading should be entitled PROPOSED

AMENDED AND SUPPLEMENTAL COMPLAINT. Plaintiff must file his

proposed amended and supplemental complaint by November 18, 2009.

IT IS SO ORDERED.

The parties to this action may object to and seek review of this Order, but are

required to file any objections within 10 days of service as provided for in 28

U.S.C. § 636(b)(1) and Local Rule 72.1(d)(2). A party may not assign as error any

defect in this Order to which timely objection was not made. Fed.R.Civ.P. 72(a). 

Any objections are required to specify the part of the Order to which the party

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objects and state the basis of the objection. Pursuant to Local Rule 72.1(d)(2), any

objections must be served on this Magistrate Judge.

Date: October 23, 2009 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on October 23, 2009, I electronically filed this paper with the

Clerk of the Court using the ECF system, which will send notification of such

filing to the following: Christine Campbell, and I certify that I have mailed by

United States Postal Service this paper to the plaintiff, a non-ECF participant, at

the following address: Christopher Lee, # 236321, BARAGA MAXIMUM

CORRECTIONAL FACILITY, Wadaga Road, Baraga, MI, 49908-9204.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov

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