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Merrick v. Ryan

United States District Court, D. Arizona

July 8, 2016

Anthony James Merrick, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          Anthony James Merrick, Plaintiff, Pro Se.

          Charles L Ryan, Defendant, represented by Joseph Scott Conlon, Renaud Cook Drury Mesaros PA & Matthew Bruce Baltierra, Renaud Cook Drury Mesaros PA.

          Karen Barcklay-Dodson, Defendant, represented by Joseph Scott Conlon, Renaud Cook Drury Mesaros PA & Matthew Bruce Baltierra, Renaud Cook Drury Mesaros PA.

          Corizon Health Incorporated, Defendant, represented by Joseph Scott Conlon, Renaud Cook Drury Mesaros PA & Matthew Bruce Baltierra, Renaud Cook Drury Mesaros PA.

          REPORT AND RECOMMENDATION

          BRIDGET S. BADE, Magistrate Judge.

         On May 13, 2016, Plaintiff filed a motion to supplement the pleadings pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. (Doc. 52.) On June 15, 2016, Defendants filed a response in opposition to that motion. (Doc. 63.) Plaintiff has not filed a reply and the time to do so has passed. See LRCiv 7.2(d). For the reasons below, the Court recommends that the motion to supplement the pleadings be denied.

         I. Background

         Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983. On July 24, 2015, Plaintiff filed a Second Amended Complaint. (Doc. 14.) The Court screened the Second Amended Complaint, pursuant to 28 U.S.C. § 1915A(a), and found that Plaintiff stated Eighth Amendment medical-treatment claims against Corizon in Count One, Ryan in Count Two, and Dr. Barcklay in Count Five. (Doc. 18 at 8-9.) The Court dismissed the retaliation claim against Dr. Barcklay in Count Six.[1] ( Id. at 8.) In Count Six, Plaintiff alleged that Dr. Barcklay falsified his medical records in retaliation for Plaintiff's failure to compliment her hair. (Doc. 14 at 16.) The Court found that Plaintiff did not adequately link the alleged falsification of medical records with the alleged confrontation between Plaintiff and Dr. Barcklay. The Court also found that Plaintiff failed to show that he suffered more than minimal harm or that Dr. Barcklay's actions chilled his exercise of his First Amendment rights. (Doc. 18 at 8.)

         II. Motion to Supplement the Pleadings

         On May 13, 2016, Plaintiff filed the pending motion to supplement pursuant to Rule 15(d) and a proposed supplemental pleading. (Docs. 52, 53.) Plaintiff asserts that his Second Amended Complaint alleges events that occurred prior to January 2016, but he intended to allege continuing violations. ( Id. at 2.) He seeks to supplement the pleadings with transactions, occurrences, and events that happened after he filed his Second Amended Complaint. ( Id. )

         In his proposed supplemental pleading, Plaintiff adds factual allegations to Counts One, Two, Five, and Six. (Doc. 53.) Plaintiff alleges that on January 11, 2016, he submitted a Health Needs Request (HNR) complaining of a cluster headache. ( Id. at 1.) On January 15, 2016, a nurse practitioner prescribed Plaintiff Excedrin for fifteen days and instructed him to notify medical if his headaches persisted so medical staff could order Imitrex. ( Id. at 1-2.) Plaintiff also alleges that between January 28 and February 26, 2016, he submitted several HNRs complaining that Excedrin did not help and he was still suffering from headaches. ( Id. at 2.) Between February 18 and March 25, 2016, Plaintiff allegedly submitted four complaints to medical for not being seen, evaluated, or treated for his headaches and spinal pain. ( Id. ) Medical staff responded to the HNRs and complaints by informing Plaintiff that he was scheduled to be seen by medical. ( Id. )

         On April 8, 2016, Plaintiff saw Dr. Barcklay for his headaches and spine pain. ( Id. ) She instructed Plaintiff to notify correctional staff immediately of any further spinal injuries and they would schedule an emergency appointment for Plaintiff to see Dr. Barcklay on the day of the injury. ( Id. ) Plaintiff alleges Dr. Barcklay ordered "standard treatments" for the migraine headaches, including Imitrex. (Doc. 53 at 2.) Plaintiff states that he no longer had cluster headaches. ( Id. ) Dr. Barcklay also gave Plaintiff a non-steroidal anti-inflammatory drug (NSAID) for his spine. ( Id. )

         Plaintiff further alleges that on April 24, 2016, he suffered "at least one herniated disc in his lower back." ( Id. at 3.) On April 25, 2016, he notified correctional staff and Nurse Millard treated him after she consulted a Nurse Practitioner, because Dr. Barcklay did not answer her phone. ( Id. ) Nurse Millard issued a Special Needs Order (SNO) for medical ice for seventy-two hours and a lay-in for thirty days and "requested an urgent provider visit." ( Id. ) Plaintiff alleges Dr. Barcklay rescinded the SNO on April 26, 2016 and told a correctional officer that she did not care about Plaintiff's pain. ( Id. ) Plaintiff alleges that he "then complained of an emergency and requested to be seen by medical, " and a correctional officer told him that Dr. Barcklay stated he would be seen in a couple hours by "Dr. Suit." ( Id. ) Plaintiff asserts there is no Dr. Suit at the facility where he is housed, and he believes this was a reference to this lawsuit, and that Dr. Barcklay rescinded the SNO in retaliation for Plaintiff filing a lawsuit against her. ( Id. )

         Plaintiff alleges that, as of May 5, 2016, he had not been seen, evaluated, or treated for his herniated discs. ( Id. ) He contends his herniated discs have not healed, and he has been unable to complete ...


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