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Ester Burnett v. Dr. Dugan

March 21, 2011


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


Plaintiff, appearing pro se, filed a second amended complaint on November 10, 2009, alleging violation of his Eighth Amendment rights based upon accommodations to plaintiff's medical condition that were denied or delayed. The SAC named Doctors Dugan, Hawthorne, Barreras, Fraze, and Khatri; Jane Doe, R.N.; Victor Almager; and G.J. Giurbino*fn1 as defendants. Defendants filed a motion to dismiss the SAC for failure to exhaust administrative remedies and a motion to dismiss for failure to state a claim under the Eighth Amendment. Rather than respond to defendants' motions to dismiss, plaintiff filed a motion to file a supplemental complaint. Defendants opposed plaintiff's motion and plaintiff replied.

The case was referred to United States Magistrate Judge William V. Gallo for a report and recommendation ("Report") in accordance with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge recommended that both of defendants' motions to dismiss be granted and plaintiff's motion to file a supplemental complaint be denied. Plaintiff filed objections to the Report and defendants filed a response to plaintiff's objections.

Because of plaintiff's objections to the Report, the Court undertook a de novo review of the objected to portions of the Report. On September 30, 2010, the Court adopted the Report and Recommendation with respect to defendants' motion to dismiss the SAC for failure to exhaust and motion to dismiss for failure to state a claim with prejudice as to Warden Almager, Dr. Barreras, Dr. Dugan and Dr. Hawthorne, and without prejudice as to defendants Dr. Fraze, Dr. Khatri, G.J. Guirbino and Jane Doe, R.N.

With respect to plaintiff's motion for leave to file a supplemental complaint, the magistrate judge recommended, relying on then-current case law, the motion be denied because the new claims had not been administratively exhausted. After the filing of the Report, the Ninth Circuit issued its decision in Rhodes v. Robinson, 2010 WL 3489777 (9th Cir. 2010). With respect to the PLRA's exhaustion requirement, the court of appeals held that it is satisfied so long as the plaintiff exhausted his administrative remedies with respect to the new claims asserted in his supplemental complaint prior to tendering that complaint to the court for filing. Rather than considering the current recommendation, the Court referred plaintiff's motion for leave to file a supplemental complaint to the magistrate judge to be considered in light of Rhodes. On February 23, 2011, the magistrate judge filed a Supplemental Report recommending that plaintiff's motion to file a supplemental complaint be denied. The Report also construed plaintiff's motion as requesting leave to amend the SAC and recommended that it be denied based on futility. Plaintiff timely filed objections to the Supplemental Report and defendants have replied to plaintiff's objections.

Standard of Review

The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) ( en banc), cert. denied, 124 S. Ct. 238 (2003).


Plaintiff has lumbar disk disease that ultimately required surgery. His back problems include mobility impairment to his lower extremities. In the SAC, plaintiff alleged that defendants were deliberately indifferent to his medical needs in that he received inadequate medical care from various health care providers while incarcerated at both the Richard J. Donovan Correctional Facility ("Donovan") and at the Centinela State Prison ("CEN"). Specifically, plaintiff alleged that defendants failed to assign plaintiff lower tier housing in contravention of his surgeon's recommendation and failed to provide a raised toilet seat following plaintiff's back surgery.

In his proposed Supplemental Complaint, plaintiff seeks to add 15 new defendants*fn2 and alleges in 13 counts that these defendants failed to provide him with a single-bed cell during his recovery from back surgery in contravention of his outside treating physician's orders. In counts 14 and 15, plaintiff alleges that Nurse Gerardo and Medical Assistant Gonzales failed to timely deliver medication to him. Finally, plaintiff alleges a wrongful transfer so that he would be housed in general population where his medical accommodations could be refused.

Legal Standard

A. Legal Standard for Supplementation or to Amend the Complaint Under Federal Rule of Civil Procedure 15(d), the court may permit a party to supplement his complaint in order to set out "any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." FED. R. CIV. P. 15(d)(emphasis added)."While leave to permit supplemental pleading is favored, it cannot be used to introduce a separate, distinct and new cause of action." Planned Parenthood of Southern Arizona v. Neely, 130 F.3d 400, 402 (9th Cir.1997) (internal citations and quotation marks omitted). Matters newly alleged in a supplemental complaint must have some relation to the claim(s) set forth in the original pleading. See Keith v. Volpe, 858 F.2d 467, 474 (9th Cir. 1988). Leave to file a supplemental complaint may not be granted where the supplemental complaint involves a new and distinct cause of action that should be the subject of a separate suit. See Neely, 130 F.3d at 402. As discussed in Rhodes, a plaintiff may, in an amended or supplemental pleading, add newly exhausted claims based on related conduct that occurred after the filing of the operative pleading complaint.

As noted in the Supplemental Report, the parties and facts plaintiff wishes to add to the operative SAC occurred prior to the filing of the SAC. The acts alleged in the proposed Supplemental Complaint occurred between February 20, 2009 and May 11, 2009; the SAC was filed on November 10, 2009. (Proposed SAC at 1. [doc. #89-3]) Rule 15(d) provides a means to add claims based on facts that did not exist when the operative complaint was filed. Eid v Alaska Airlines, Inc., 621 F.3d 858, 874 (9th Cir. 2010). Clearly, the acts plaintiff complains of in the proposed Supplemental Complaint occurred before he filed his SAC.

In objecting to the Report's finding that Rule 15(d) was not applicable under the facts of this case and that the motion should be construed as one to amend the complaint, plaintiff states:

Plaintiff motion to file a supplemental complaint should not be construed as a motion to amend under Rule 15(a) An amended complaint deals with events that occurred before the original complaint was filed. . . . The Court cannot construe plaintiff's ...

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