March 12, 2009
Before the court is the plaintiff's motion to file a supplemental complaint (#27). Defendants have opposed the motion (#30). Plaintiff has not replied. Plaintiff seeks to add claims based on conduct that has occurred since the filing of this action. Under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion must occur prior to filing suit. McKinney v. Carey, 311 F.3d 1198, 1199, -1201 (9th Cir. 2002). The exhaustion requirement is mandatory and is a prerequisite to all suits about prison life. Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). Because the allegations in the plaintiff's proposed supplemental complaint are based on conduct that took place after he initiated this action, he could not have exhausted his administrative remedies with regard to those allegations. Although the court has discretion to allow a party to file a supplemental complaint including claims based on events occurring since the filing of the original complaint, see Fed.R.Civ.P. 15(d), Rule 15(d) cannot be used to override the exhaustion requirement of 42 U.S.C. § 1997e(a). See Harris v. Garner, 216 F.3d 970, 982 (11th Cir. 2000) (noting that in a "conflict between [Rule] 15 and the PLRA, the rule would have to yield to a later-enacted statute to the extent of the conflict," and that Rule 15 "does not and cannot overrule a substantive requirement or restriction contained in a statute (especially a subsequently enacted one"). Accordingly, plaintiff's motion to supplement his complaint is denied and his supplemental complaint is dismissed without prejudice, with leave to refile the complaint in a new action after he has exhausted his administrative remedies.