United States District Court, N.D. California
LORENZO R. CUNNINGHAM, Plaintiff,
MEDTRONIC INC., et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO
FILE SUPPLEMENTAL PLEADING; SETTING BRIEFING
HAYWOOD S. GILLIAM, JR UNITED STATES DISTRICT JUDGE
October 30, 2014, plaintiff, a California state prisoner
incarcerated at the California Healthcare Facility, filed
this pro se action pursuant to 42 U.S.C. §
1983. The action arises out of lumbar-thoracic spinal fusion
surgeries performed on plaintiff in April of 2012 and
September of 2012. On February 21, 2017, the Court screened
plaintiff's second amended complaint (“SAC”),
which sought to add claims arising out of a third
lumbar-thoracic spinal fusion surgery performed in February
of 2016. Plaintiff has named two defendants: (1) Dr. Burch,
who performed the surgeries, and (2) Medtronic Inc.
(“Medtronic”), which manufactured the spinal rods
used in the 2012 surgeries and February 2016 surgery. The
Court found that, liberally construed, the SAC states: (1)
deliberate indifference to serious medical needs as against
Dr. Burch; (2) supplemental state law claims for negligence
as against Dr. Burch; and (3) supplemental state law claims
for strict liability, negligence, and failure to warn as
against Medtronic. The Court also bifurcated summary judgment
proceedings and directed Dr. Burch to file a motion for
summary judgment, while the claims against Medtronic were
stayed. Now before the Court is plaintiff's motion for
leave to supplement his complaint to add claims arising out
of a neck surgery performed by Dr. Burch in December of 2016.
Along with the motion, plaintiff has filed a proposed
supplemental complaint. Dr. Burch has filed an opposition to
the motion, and plaintiff has filed a reply.
Rule of Civil Procedure 15(d) allows a party to supplement
pleadings “upon reasonable notice and upon such terms
as are just” for the purpose of alleging
“transactions or occurrences or events which have
happened since the date of the pleading sought to be
supplemented.” Fed.R.Civ.P. 15(d); Planned
Parenthood of So. Arizona v. Neely, 130 F.3d 400, 402
(9th Cir. 1997). “Rule 15(d) is intended to give
district courts broad discretion in allowing supplemental
pleadings.” Keith v. Volpe, 858 F.2d 467, 473
(9th Cir. 1988).
pleadings cannot be used to introduce a separate, distinct,
and new cause of action. See Neely, 130 F.3d at 402.
Matters newly alleged in a supplemental complaint must have
some relation to the claim set forth in the original
pleading. See Keith, 858 F.2d at 474. Assuming the
matters alleged in the supplemental complaint have some
relation to the claim(s) set forth in the original complaint,
that the supplemental pleading “technically”
states a new cause of action is a factor to be considered by
the court in the exercise of its discretion, along with such
factors as possible prejudice or laches. Id.
standards for granting a motion for leave to file a
supplemental pleading are the same as those for granting a
motion to file an amended complaint under Rule 15(a). See
Glatt v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir.
1996). “[L]eave need not be granted where the amendment
of the complaint would cause the opposing party undue
prejudice, is sought in bad faith, constitutes an exercise in
futility, or creates undue delay.” Ascon Props.,
Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.
1989). The court should also consider whether permitting the
supplemental pleading will “serve to promote judicial
efficiency.” Neely, 130 F.3d at 402.
Court first notes that plaintiff's proposed supplemental
pleading alleges only state law causes of action against Dr.
Burch arising out of the December 2016 neck surgery. Although
plaintiff attempts to allege an Eighth Amendment claim for
deliberate indifference to serious medical needs, the problem
with the supplemental complaint concerns the mental state
required for an Eighth Amendment claim. A defendant is
deliberately indifferent if he knows that a prisoner faces a
substantial risk of serious harm and disregards that risk by
failing to take reasonable steps to abate it. See Farmer
v. Brennan, 511 U.S. 825, 837 (1994). The defendant must
not only “be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, ” but he “must also draw the
inference.” Id. If the defendant should have
been aware of the risk, but was not, then he has not violated
the Eighth Amendment, no matter how severe the risk.
Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th
Cir. 2002). The supplemental complaint fails to allege facts
sufficient to state a claim that Dr. Burch acted with
deliberate indifference to plaintiff's serious medical
it does not appear that allowing the supplemental complaint
would significantly promote judicial efficiency. Although the
new claims bear some relation to the original claims, they
“technically” state a new cause of action.
See Keith, 858 F.2d at 474. Specifically, Dr. Burch
points out, and plaintiff does not dispute, that the December
2016 surgery: (1) was performed on a different part of
plaintiff's spine than the 2012 surgeries and February
2016 surgery; and (2) did not involve the Medtronic rods
placed in plaintiff's lower back during the 2012
surgeries and February 2016 surgery.
the instant case has already been pending for two-and-a-half
years and the claims date back even further, specifically to
April 2013, when plaintiff first attempted to file in this
court claims arising from his April 2012 surgery. See
Cunningham v. UCSF Spine Center, et al., C 13-1978 EMC
(PR). Defendants have already commenced plaintiff's
deposition, with plans to complete it this month.
See Dkt. No. 132. Granting leave to permit a
supplemental pleading would require Dr. Burch to respond to a
new set of claims, likely requiring additional discovery. The
Court finds that the risk of undue delay and prejudice to the
opposing party outweighs any gain in judicial efficiency.
Indeed, plaintiff has already amended his complaint once to
add claims arising from his February 2016 surgery. Permitting
amendment every time plaintiff undergoes another surgery is
untenable. Simply put, it is time for this case to move
forward to a conclusion.
plaintiff's motion for leave to file a supplemental
complaint will be denied. Plaintiff may attempt to pursue in
state court the claims arising out of his December 2016