FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently before the court are defendant Felker's motion for summary judgment (Docket No. 117) and plaintiff's motion for leave to file a "supplemental" complaint (Docket No. 133). For the following reasons, the court recommends that plaintiff's motion for leave to amend be denied and that the motion for summary judgment be granted.
This action was filed on January 14, 2008 and proceeds on the amended complaint filed March 29, 2010. Dckt. Nos. 1, 82. Plaintiff's claims against all defendants other than defendant Lebeck have been dismissed following screening and a series of motions to dismiss. Dckt. Nos. 98, 109, 103, 120. Plaintiff alleges the following against defendant Lebeck:
Well defendant Lebeck on 11-6-07 wantonly pushed plaintiff in van by grabing [sic] plaintiff by his right arm knowing this was plaintiff's injured disabled arm plaintiff underwent major surgery on, causing plaintiff to fall on his left side and shoulder in chronic pain. Defendant Lebeck then grabed [sic] plaintiff's legs raising them "high" in the air turning plaintiff on his back causing severe pain to shoot through plaintiff's back. Then threw plaintiff's legs in van. "This malicous [sic] and sadistic act had plaintiff in fear or his life" and prior to this assault of 11-6-07 on 10-31-07 defendant Lebeck approached plaintiff cell D-5-109 and said to plaintiff, "Dam" Jones we haven't killed you yet your [sic] not "dead yet."
Dckt. No. 82 at 4. Plaintiff alleges that defendant Lebeck violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution and his right to equal protection under the 14th Amendment to the U.S. Constitution. Id. at 5. Plaintiff also alleged that the conduct violated due process but this claim was screened out by the court. See Dckt. Nos. 88, 103.
II. Motion for Leave to File a Supplemental or Amended Complaint
Plaintiff has filed a brief motion seeking leave to file a "supplemental" complaint. Dckt. No. 133. Plaintiff states simply that he wishes "to add more and different facts" and "to add new legal claims." Id. at 1.
Under Federal Rule of Civil Procedure 15(d), "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 pleading to be supplemented." Because plaintiff seeks to add not only new facts that possibly occurred after the currently-operative amended complaint was filed, but also to add "new legal claims," he does not seek simply to file a supplemental complaint but rather an amended complaint.
Under Rule 15(a), once 21 days have elapsed since the defendant has filed a responsive pleading (as is the case here), leave to amend a complaint should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). However, once the district court has issued a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 establishing a timetable for amending pleadings, leave to amend may not be granted unless the plaintiff first establishes good cause for departure from the scheduling order's deadlines under Rule 16(b)(4). Id. at 607-08. In determining whether Rule 16's good cause standard has been met, the court considers primarily the diligence of the party seeking amendment; i.e., whether the party has shown that he could not reasonably meet the scheduling order's deadline despite his diligence. Id. at 609.
The discovery and scheduling order in this case issued on September 14, 2010 and gave plaintiff until January 7, 2011 to seek leave to amend. Dckt. No. 100. Instead, plaintiff waited until July 5, 2011 -- nearly six months late -- to do so. Plaintiff has not presented the court with any facts even suggesting that he could not have complied with the deadline despite his diligence. Accordingly, plaintiff's motion for leave to file an amended complaint should be denied.
III. Defendant Lebeck's Motion to for Summary Judgment
Defendant Lebeck asks this court to summarily adjudicate plaintiff's Eighth Amendment claim in his favor on the grounds that the undisputed facts show no cruel and unusual punishment occurred.*fn1
A. Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment ...