Bryant v. Gallagher et al

Filing 227

ORDER DENYING Plaintiff's 198 Motion for Leave to File a Supplemental Complaint signed by Magistrate Judge Barbara A. McAuliffe on 2/25/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN DARNELL BRYANT,

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Plaintiff,

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v.
GALLAGHER, et al.,

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Defendants.

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Case No.: 1:11-cv-00446-LJO-BAM (PC)
ORDER DENYING PLAINTIFF‘S MOTION FOR
LEAVE TO FILE A SUPPLEMENTAL
COMPLAINT
(ECF No. 198)

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I.

Introduction

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Plaintiff Kevin Darnell Bryant (―Plaintiff‖) is state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff‘s

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claims against Defendant Romero for deliberate indifference to serious medical needs in violation of

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the Eighth Amendment, and against Defendants Gallagher and Romero for conspiracy, retaliation in

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violation of the First Amendment, and failure to protect in violation of the Eighth Amendment. These

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claims arise out of an alleged assault of Plaintiff on June 8, 2010 at Kern Valley State Prison

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(―KVSP‖), which he alleges Defendants orchestrated. (ECF No. 18.)
Currently before the Court is Plaintiff‘s motion for leave to file a supplemental complaint

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pursuant to Federal Rule of Civil Procedure 15(d). (ECF No. 198.) Defendants filed their opposition

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on July 14, 2015, (ECF No. 203), and Plaintiff replied on August 31, 2015 (ECF No. 213). The motion

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is deemed submitted. Local Rule 230(l).

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A.

Motion for Leave to File Supplemental Pleading

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Plaintiff states in his motion that he seeks to file a supplemental complaint setting out

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occurrences and events that happened after the date of the pleading to be supplemented, naming

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additional defendants, including the California Department of Corrections and Rehabilitation

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(―CDCR‖), and a number of individual defendants, and bringing claims of retaliation, failure to

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protect, failure to investigate his assault, and obstruction of justice in their conspiracy to cover up

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criminal acts committed against him by the current Defendants. (ECF No. 198.) He also seeks to add

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state law claims of assault and battery against the current Defendants and CDCR. In support of his

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motion, Plaintiff argues that all of his claims are related under Rule 18(a), and he has exhausted all

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available remedies pursuant to the applicable provisions of the PLRA. He also states that his new

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causes of action were just discovered in April or May 2014, and were not exhausted until January

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2015, when he could make this motion.

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The current Defendants oppose the motion, arguing that Plaintiff has failed to show good cause

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for supplementing the complaint at this stage in the litigation. (ECF No. 203.) Noting that Plaintiff did

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not provide a proposed supplemental complaint with the original motion, Defendants argue generally

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against the proposed new defendants and claims. In response, Plaintiff lodged a proposed

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supplemental complaint, (ECF No. 215), along with his reply brief, (ECF No. 213.)

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B.

Summary of Proposed Supplemental Allegations

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Plaintiff‘s proposed supplemental complaint seeks to re-allege claims against defendants that

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are no longer involved in this action, including Associate Director Kelly Harrington (named in

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Plaintiff‘s original complaint as ―Warden Harrington‖), and CDCR Secretary and former Director

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Matthew Cate. Plaintiff also seeks to add several new defendants to this action, including Warden

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Martin D. Biter, CDCR Secretary and Director Jeffrey Beard, Correctional Lieutenant J. Stiles,

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Correctional Sergeant A. Sells, Special Agent Gerald Biane, Special Agent Ricardo Christensen, and

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Correctional Lieutenant Harden. He seeks to sue all of these proposed defendants in their official and

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individual capacities.

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Following a lengthy summary of matters regarding CDCR‘s internal investigation and
employee disciplinary process, Plaintiff alleges that CDCR has a policy and custom of covering up
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staff misconduct which resulted in him being injured in the June 8, 2010 assault that is the subject of

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the current suit. (ECF No. 215, p. 7.) He further alleges that the proposed new defendants conspired to

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cover-up the evidence of his assault, and withheld or spoliated the evidence they obtained, in order to

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shield the current Defendants and CDCR from liability and prosecution. Plaintiff claims that this has

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placed him in constant and imminent danger of harm. He states that the CDCR secretaries before,

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during, and after his assault were Cate and Beard, and the wardens at KVSP before, during, and after

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his assault were Harrington and Biter. (ECF No. 215, pp.6-7.)

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On July 12, 2010, Lieutenant Stiles, the KVSP Investigative Services Unit (―ISU‖) supervisor,

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and Lieutenant Harden interviewed Plaintiff about the assault. The interviewers stated that they knew

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the Defendants paid inmates to assault Plaintiff, and there was evidence of this from other staff and

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inmates. On September 30, 2010, Lieutenant Stiles and Sergeant Sells also interviewed Plaintiff, and

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Plaintiff gave them additional information, let them copy his journal entries from June 8, 2010, and

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gave them a copy of his then-unfiled state court tort claim complaint. Lieutenant Stiles later informed

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Plaintiff that he had completed his investigation and submitted a report to Warden Harrington, who

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would submit it to Secretary Cate. Lieutenant Stiles interviewed Plaintiff several more times with

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other staff, and then began telling Plaintiff that there was no evidence, no report was ever submitted,

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and it was all unfounded. (ECF No. 215, pp. 8-9.)

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On November 30, 2010, Plaintiff spoke to an inmate, Edward Vargas, who told Plaintiff that he

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reported information about Plaintiff‘s assault to Lieutenant Stiles. Inmate Vargas was then attacked by

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the Defendants. On August 9, 2011, Plaintiff told Warden Biter everything that had happened to him

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on June 8, 2010, how nothing had been done about it, and that he had been repeatedly threatened by

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staff. Plaintiff also wrote to Warden Biter, Secretary Cate, and others that his life was in danger and he

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needed protection. On August 25, 2011, Lieutenant P. Morales interviewed Plaintiff and another

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inmate. On August 25, 2011, Special Agent Biane interviewed Plaintiff about the June 8, 2010 assault

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and all the threats, assaults and torture thereafter. Special Agent Baine returned on September 30, 2011

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to interview Plaintiff again, and on October 5, 2011 Baine interviewed another inmate witness. All

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evidence from these interviews, including recordings, has been concealed by CDCR. (ECF No. 215,

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pp. 9, 13.)
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Special Agent Christensen visited Plaintiff on September 18, 2012 and April 27, 2015, and

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informed Plaintiff that there were nine special agents investigating various incidents of staff

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misconduct and cover-ups at KVSP, which had been going on for several years. Special Agent

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Christensen further informed Plaintiff that those officials who blow the whistle are retaliated against.

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Various investigations related to other inmates that were allegedly covered-up. (ECF No. 215, pp. 10-

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Plaintiff claims that Harrington and Biter were responsible for the violations of policy and

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procedure related to investigations and staff misconduct by Lieutenant Stiles and Sergeant Sells,

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including the investigation into Plaintiff‘s June 8, 2010 assault. Plaintiff also alleges that he wrote

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dozens of emergency requests for investigations and protection to Secretary Cate notifying Cate of the

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June 8, 2010 assault and cover-up of the investigations. Plaintiff wrote several of these emergency

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requests to Harrington and Biter and to the Office of Internal Affairs in Sacramento and Bakersfield,

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California. Baine and Christenson and Lieutenant Harden failed to report the misconduct, and all the

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proposed defendants covered it up as well. None of the assailants were ever charged, punished, or

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disciplined for assaulting Plaintiff. Instead, several days after his assault, Plaintiff and another inmate

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were attacked by Gallagher and Romero in retaliation for Plaintiff reporting his assault, after someone

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in the ISU told Gallagher and Romero about Plaintiff‘s report. (ECF No. 215, pp. 12-14.)
Plaintiff seeks declaratory relief, injunctive relief, compensatory and punitive damages, and his

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release from prison.

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II.

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Legal Standard
Under Rule 15(d), a court ―may, on just terms, permit a party to serve a supplemental pleading

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setting out any transaction, occurrence, or event that happened after the date of the pleading to be

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supplemented.‖ The bringing of new claims in a supplemental pleading should be allowed when it

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promotes the economical and speedy disposition of a controversy. Keith v. Volpe, 858 F.2d 467, 473

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(9th Cir. 1988). see also San Luis & Delta–Mendota Water Authority v. U.S. Dept. of Interior, 236

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F.R.D. 491, 497 (E.D. Cal. 2006) (identifying nine factors that the Supreme Court and Ninth Circuit

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have applied in determining the appropriateness of supplementation). Courts should freely grant leave

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to file a supplemental or amended pleading absent special circumstances, such as: (1) undue delay; (2)
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bad faith or dilatory motive on the part of the movant; (3) repeated failure to cure deficiencies with

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previous amendment; (4) prejudice to the opposing party; and (5) futility of amendment. Foman v.

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Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). However, although leave to permit

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supplemental pleading is generally favored, the supplemental pleading cannot be used to introduce a

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‗separate, distinct and new cause of action.‘‖ Planned Parenthood v. S. Ariz. V. Neely, 130 F.3d 400,

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402 (9th Cir. 1997).

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III.

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Analysis
In this case, the factors to consider in determining whether to grant Plaintiff‘s motion for leave

to file a supplemental pleading weigh against granting that request. This case concerns Plaintiff‘s

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claims arising out his allegations that Defendants Gallagher and Romero conspired to have him

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assaulted on June 8, 2010 in retaliation for making a complaint about his job. Plaintiff‘s proposed

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supplemental allegations would exponentially expand the scope of this case to concern many matters

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far afield of this narrow event, involving unrelated issues of law and fact. This case does not concern

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issues involving allegations of a conspiracy to cover-up wrongdoing through improper investigations

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of complaints by prison officials, which is the ultimate subject of Plaintiff‘s new allegations against

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the proposed new defendants. Allowing a supplemental complaint to add new, unrelated causes of

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action would not promote judicial efficiency or the speedy disposition of the matter, because the entire

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controversy between the parties may not be settled in a single action. See Planned Parenthood of So.

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Arizona v. Neely, 130 F.3d 400, 402 (9th Cir.1997). Thus, the purposes of allowing a supplemental

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pleading would not be well-served by allowing one here.

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This issue is related to the factor which weighs most heavily in the analysis here—prejudice to

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the opposing party. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)

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(the consideration of prejudice to the opposing party carries the greatest weight in a Rule 15 analysis).

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As Defendants argue, this case has been pending for over four years, discovery has been closed for

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over two years, and the parties have fully-briefed Plaintiff‘s motion for summary judgment. This Court

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has now issued a recommendation on that motion, bringing this case closer to its final resolution.

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Should Plaintiff be allowed to add new claims and defendants now, the litigation process here will

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begin anew. Discovery will need to be re-opened, since none of the matters raised in Plaintiff‘s
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proposed supplemental allegations were at issue in the case through now. Plaintiff estimates he would

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require 180 days to propound discovery related to these new claims and defendants. Defendants

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anticipate potential additional dispositive motions, further delaying the resolution of this matter. The

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parties have also engaged in prior settlement discussions and a mediation, which efforts might require

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revisiting if the new claims and defendants were added. Thus, granting leave to supplement here

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would result in significant prejudice to Defendants. See Frederick v. California Dep‘t of Corr. &

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Rehab., No. C 08-2222 MMC PR, 2012 WL 2077305, at *2 (N.D. Cal. June 8, 2012).

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Other reasons also weigh against allowing a supplemental complaint here. Addressing whether

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Plaintiff is operating in bad faith, Defendants note that he is subject to the three strikes provision of 28

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U.S.C. § 1915(g) based on prior litigation, and they argue that if his supplemental claims were filed as

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a separate action, it would not likely qualify for any exception under § 1915(g). Although Defendants

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do not contend Plaintiff is acting in bad faith, they argue that if he is allowed to add these claims to

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this case, he would unfairly circumvent the provisions of § 1915(g). The Court does not find that

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Plaintiff is yet acting in bad faith here, in this instance and under these circumstances. Nevertheless,

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the Court agrees that if Plaintiff filed this supplemental complaint as a new action, he would be subject

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to § 1915(g), and the action would not qualify for any exception under § 1915(g), as currently pleaded.

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Plaintiff should not be allowed to circumvent the filing fee requirements of the PLRA through

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amending or supplementing his action here.

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Defendants also argue that there is unexplained undue delay here, even assuming Plaintiff‘s

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statements that he just discovered these new causes of action in 2014 and did not exhaust them until

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January 2015 are true. Defendants argue that this does not explain why Plaintiff waited six months,

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until June 29, 2015, to file his motion for leave to file a supplemental pleading. In his reply, Plaintiff

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asserts that the delay was due to health issues and a lack of access to his property during this six month

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period. What is not explained, however, is Plaintiff‘s contention that he did not discover these matters

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until 2014. His proposed supplemental allegations concern matters which occurred beginning in 2010,

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and although he alleges some ongoing conduct, much of the alleged conduct was completed before

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2014. Plaintiff does not explain his delay in attempting to supplement his pleadings any sooner than

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the current motion.
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Finally, issue of futility weighs against allowing leave to supplement here, as Defendants

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argue. Plaintiff concedes in his reply that his proposed claim against CDCR is barred by the Eleventh

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Amendment. Also, as noted above, Plaintiff alleged some of these same claims against proposed

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defendants Harrington and Cate in his initial complaint in this matter. After he was informed that those

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claims were not cognizable and granted leave to amend to cure the deficiencies in that complaint to the

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extent possible, (ECF No. 15), he did not include any claims against those defendants in his amended

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complaint, (ECF No. 18). These new supplemental allegations have not cured the deficiencies he was

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previously informed about, and regardless, his opportunity to amend his pleadings in support of those

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claims has long passed. Generally, although Plaintiff asserts that there is a conspiracy to cover-up

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prison official misconduct in his supplemental complaint, much of his allegations are conclusory, and

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they mostly fail to state sufficient specific facts to support viable claims for violations of his federal

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rights. Although not all of Plaintiff‘s allegations appear entirely futile, the Court declines to allow any

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supplemental or amended pleading for those claims that might survive at this stage in the litigation, for

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the reasons discussed above.

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IV.

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Conclusion and Order
Accordingly, IT IS HEREBY ORDERED that Plaintiff‘s motion for leave to file a

supplemental complaint (ECF No. 198) is denied.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 25, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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