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Crew v. Department of Corrections and Rehabilitation

United States District Court, E.D. California

June 1, 2017

DAVID CREW, Plaintiff,
v.
DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

          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.

         Plaintiff 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.

         Currently 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).

         I. Motion to Amend the Complaint

         Plaintiff's 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 Procedure 15(d).

         a. Legal Standards

         Federal 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).

         Generally, 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).

         b. Plaintiff's Proposed Supplemental Complaint Allegations

         Plaintiff's 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 removal.

         On May 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.

         The 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.

         c. Discussion

         Plaintiff 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 ...


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