United States District Court, E.D. California
ORDER DENYING MOTION TO AMEND THE COMPLAINT (ECF NO.
27) ORDER DENYING EX PARTE MOTION FOR ASSIGNMENT OF COUNSEL
(ECF NO. 28)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
David Crew (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this action under
42 U.S.C. § 1983. This action proceeds on
Plaintiff's second amended complaint against Defendant
Patel for deliberate indifference in violation of the Eight
Amendment arising from his intentional refusal or delay of
Plaintiff's medical care. (ECF No. 24.) The Court ordered
the United States Marshal to serve Defendant Patel with the
second amended complaint on May 8, 2017. (ECF No. 26.) The
Marshals Service has not yet filed a waiver of service or
return of service for Defendant Patel, and no responsive
pleading has been filed.
before the Court are Plaintiff's May 18, 2017 motion to
amend the complaint, (ECF No. 27), and Plaintiff's May
23, 2017 ex parte motion for assignment of counsel. (ECF No.
28.) As no defendant has yet appeared in this action and the
Court finds a response unnecessary, the motions are deemed
submitted. Local Rule 230(1).
Motion to Amend the Complaint
motion to amend the complaint sets forth events occurring
from October 26, 2016 until May 15, 2017, the date he signed
his motion. (ECF No. 27.) As the motion alleges facts arising
after the filing of the original complaint on April 26, 2016,
the Court will construe the motion as a motion to file a
supplemental pleading pursuant to Federal Rule of Civil
Rule of Civil Procedure 15(d) states, “[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 pleading to be supplemented.” Fed.R.Civ.P.
15(d). “While leave to permit supplemental pleadings is
favored, it cannot be used to introduce a separate, distinct
and new cause of action.” Planned Parenthood of So.
Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997)
(internal quotation marks and citation omitted).
district courts use the same standard in deciding whether to
grant or deny a motion for leave to supplement or whether to
grant or deny a motion for leave to amend a complaint or
answer. See MJC America, Ltd. v. Gree Electric
Appliances, Inc. of Zhuhai, CV 13-04264 SJO (CWx), 2014
WL 12614435, at * 3 (C.D. Cal. Sept. 3, 2014) (citing
Womack v. Geo Group, Inc., CV-12-1524-PHX-SRB (LOA),
2013 WL 491979, at *5 (D. Ariz. Feb. 8, 2013)). “Thus,
leave to file a supplemental complaint should be freely
granted unless there is undue delay, bad faith or dilatory
motive on the part of the movant, undue prejudice to the
opposing party, or the supplement would be futile.”
Womack, 2013 WL 491979, at *5 (citations omitted).
Plaintiff's Proposed Supplemental Complaint
proposed supplemental complaint alleges as follows: On
October 26, 2016, Plaintiff was diagnosed with a single
kidney stone. Plaintiff was not seen or treated until March
2017. At some point, Plaintiff was seen by a urologist, who
was referred by Dr. Patel. The urologist stated that the
kidney stone was “okay.” Plaintiff was
hospitalized one month later for vomiting blood and abdominal
pain. After observation and a CAT scan at San Joaquin
Community Hospital, Plaintiff was found to have developed
multiple kidney stones in both kidneys, which required urgent
3, 2017, Plaintiff underwent a two-hour surgery during which
the urologist placed two tubes from Plaintiff's left and
right kidneys to his bladder to keep his urinary tract open.
The after effects of the procedure were and are severely
painful. The urologist recommended that Plaintiff undergo
three separate surgeries. The procedure for Plaintiff's
right kidney is scheduled for two weeks after May 3, 2017,
and shortly after the tubes will be removed.
urologist recommended that Plaintiff be medically treated and
given proper medication for pain. Dr. Patel placed Plaintiff
on Tylenol 3. Plaintiff urinates blood and feels as if small
razor blades are passing through every time he uses the
restroom, and the pain is beyond explanation. On May 8, 2017,
Plaintiff was sent to San Joaquin Community Hospital for
bleeding and pain. Plaintiff contends that Dr. Patel's
prescription for Tylenol 3 after his kidney surgery is only
repeating his history of inadequate medical treatment.
essentially alleges that he continues to receive inadequate
medical treatment from Defendant Patel, and does not name
additional defendants. Thus, Plaintiff's proposed
supplemental pleading complies with Federal Rule of Civil
Procedure 18(a), which permits “[a] party asserting a