United States District Court, D. Arizona
HONORABLE JOHN J. TUCHI JUDGE.
REPORT AND RECOMMENDATION
Camille D. Bibles United Slates Magistrate Judge.
the Court is Plaintiff's motion (ECF No. 121) for leave
to amend and supplement his Second Amended Complaint.
Plaintiff seeks leave to amend Count Five of his Second
Amended Complaint and to supplement that complaint by adding
a thirteenth claim for relief, citing Rule 15(c)(1)(B) and
Rule 15(d) of the Federal Rules of Civil Procedure. Because a
magistrate judge cannot decide a “matter dispositive of
a claim or defense or a prisoner petition challenging the
conditions of confinement, ” Rule 72(b)(1), the
undersigned recommends as follows.
proceeding pro se, filed a prisoner civil rights
complaint in the Pinal County Superior Court on April 17,
2017. Defendant State of Arizona removed the matter to
federal court on June 12, 2017. (ECF No. 1). Plaintiff filed
a First Amended Complaint on July 18, 2017. (ECF No. 16).
Plaintiff was ordered to amend that complaint on August 24,
2017, and he filed a Second Amended Complaint on November 1,
2017. (ECF No. 24). On March 20, 2018, the Court ordered
Defendants Shy and Stitt to answer Counts One, Two, and
Three; ordered Defendants Shy, Stitt, and Bendel to answer
Count Four; ordered Defendants Chapman, Rojas, and Hawley to
answer Count Five; ordered Defendants Shy, Stitt, Salyer, and
Redmon to answer Count Six; ordered Defendants Corizon,
Salyer, and Redmon to answer Counts Seven and Eight; and
ordered Defendants State of Arizona and Arizona Department of
Corrections to answer Count Nine. (ECF No. 28). The Court
dismissed Counts Ten, Eleven, and Twelve and Defendants Ryan,
Pratt, and Ibarra. (Id.). The Court issued a
scheduling order requiring discovery be completed by
September 18, 2018, and dispositive motions be filed by
November 17, 2018. (ECF No. 53). The deadline for filing
dispositive motions was extended to March 2, 2019, and then
again until April 3, 2019. (ECF No. 123).
Arizona Department of Corrections filed a motion to dismiss
all claims against it, which motion was granted on October 5,
2018. (ECF Nos. 38 & 93). Defendants Chapman and Rojas
were dismissed for Plaintiff's failure to serve these
defendants. (ECF No. 108). Defendants Shy and Stitt filed a
motion, in which Defendants Redmon and Salyer joined, to
dismiss Counts Two and Six; the motion was granted on January
31, 2019. (ECF Nos. 44 & 115). Accordingly, the remaining
claims and Defendants in this action are Plaintiff's
claims against Defendants Shy and Stitt in Counts One and
Three; Defendants Shy, Stitt, and Bendel in Count Four;
Defendant Hawley in Count Five; Defendants Corizon, Salyer,
and Redmon in Counts Seven and Eight; and Defendant the State
of Arizona in Count Nine. (ECF No. 83).
filed the pending motion on February 2, 2019, at which time
the deadline for filing dispositive motions was March 2,
2019. Plaintiff seeks leave to amend Count Five of the Second
Amended Complaint and to supplement the Second Amended
Complaint with a Count Thirteen against two new defendants.
(ECF No. 121). Plaintiff is not entitled to amend or
supplement the Second Amended Complaint without leave of the
Court. See Fed. R. Civ. P. 15(a)(1). Defendants
oppose the motion to amend and supplement the Second Amended
Complaint. (ECF No. 126).
Standard governing Rule 15 motions
15(a) of the Federal Rules of Civil Procedure provides a
plaintiff should be given leave to amend his complaint when
justice so requires. Granting or denying leave to amend is a
matter committed to the Court's discretion. Hartmann
v. California Dep't of Corr. & Rehab., 707 F.3d
1114, 1129 (9th Cir. 2013). In exercising this discretion
with regard to a Rule 15 motion filed after a responsive
pleading, the Court should considerthe prejudice to the
opposing party, whether granting the motion will result in
undue delay, and whether the plaintiff has previously amended
his complaint. Western Shoshone Nat'l Council v.
Molini, 951 F.2d 200, 204 (9th Cir. 1991). Granting
leave to amend causes substantial prejudice if it alters the
litigation, creates additional discovery, or causes an
extreme delay. See Roberts v. Arizona Bd. of
Regents, 661 F.2d 796, 798 (9th Cir. 1981) (affirming
the district court's denial of a motion to amend when the
amendment was “raised at the eleventh hour, after
discovery was virtually complete and the Board's motion
for summary judgment was pending before the court.”).
amended complaint amends the original claims, whereas a
supplemental complaint adds new claims. See Finfrock v.
Jordan, 105 F.3d 660 (7th Cir. 1996). Federal Rule of
Civil Procedure 15(d) allows a party to supplement his
pleading to set forth transactions or events that have
happened since the date of the original pleading. However,
although Rule 15(a) explicitly requires that leave to amend
be freely granted, no comparable admonition applies to
motions to supplement under Rule 15(d). The Court has broad
discretion to decide whether or not to allow a party to
supplement his complaint. The Court may deny a motion to
supplement on the grounds of undue delay, bad faith or
dilatory motive on the part of the movant; undue prejudice to
the opposing party; or if allowing the supplemental claim
would be futile. Johnson v. Buckley, 356 F.3d 1067,
1077 (9th Cir. 2004); Chodos v. West Publ'g Co.,
292 F.3d 992, 1003 (9th Cir. 2002). As with a motion to
amend, futility by itself can justify denial of a motion to
supplement. See Bonin v. Calderon, 59 F.3d 815,
845-46 (9th Cir. 1995). Additionally, because the goal of
Rule 15(d) is to promote judicial efficiency, a motion to
supplement may be denied if granting the motion would, in
effect, result in two separate actions within the same case.
Planned Parenthood of So. Ariz. v. Neely, 130 F.3d
400, 402 (9th Cir. 1997). And, as with a motion to amend, a
motion to supplement may be denied if not timely brought.
Twin Disc, Inc. v. Big Bud Tractor, Inc., 772 F.2d
1329, 1338 (7th Cir. 1985).
Motion to amend Count Five
Count Five, Plaintiff claims Defendant Chapman retaliated
Plaintiff for filing a grievance and state court lawsuit
against his employer (Defendant Corizon) and coworkers
(Defendants Rojas and Hawley), in violation of
Plaintiff's First Amendment rights. Plaintiff asserts
that after his grievance appeal regarding Defendant
Corizon's failure to properly treat his hip pain was
granted, he was told to submit another health needs request
form for treatment. He contends Defendant Chapman
communicated with Defendants Rojas, Hawley, and “other
Corizon Health Administrators” about “ways &
means to limit the Plaintiff[']s ability to meaningfully
prosecute this lawsuit” and they agreed to do so by
“causing excessive financial burdens on the
Plaintiff.” Plaintiff asserts that when he submitted
another health needs request form for treatment, Defendant
Chapman charged Plaintiff a second co-payment, stating that
“no such records existed” and, therefore,
Plaintiff would be charged the co-payment every time he
submitted a health needs request form. He claims the actions
of Defendants Chapman, Rojas, Hawley, and ...