Crew v. Commissioner of Department of Corrections and Rehabilitation

Filing 29

ORDER DENYING Motion to Amend the Complain 27 ; ORDER DENYING Motion for Assignment of Counsel 28 , signed by Magistrate Judge Barbara A. McAuliffe on 6/1/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID CREW,

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Plaintiff,

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Case No. 1:16-cv-00590-LJO-BAM (PC)

v.
DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,
Defendants.

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ORDER DENYING MOTION TO AMEND
THE COMPLAINT
(ECF No. 27)
ORDER DENYING EX PARTE MOTION
FOR ASSIGNMENT OF COUNSEL
(ECF No. 28)

Plaintiff David Crew (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s second

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amended complaint against Defendant Patel for deliberate indifference in violation of the Eight

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Amendment arising from his intentional refusal or delay of Plaintiff’s medical care. (ECF No.

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24.) The Court ordered the United States Marshal to serve Defendant Patel with the second

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amended complaint on May 8, 2017. (ECF No. 26.) The Marshals Service has not yet filed a

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waiver of service or return of service for Defendant Patel, and no responsive pleading has been

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filed.

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Currently before the Court are Plaintiff’s May 18, 2017 motion to amend the complaint,

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(ECF No. 27), and Plaintiff’s May 23, 2017 ex parte motion for assignment of counsel. (ECF No.

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28.) As no defendant has yet appeared in this action and the Court finds a response unnecessary,

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the motions are deemed submitted. Local Rule 230(l).
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I.

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Plaintiff’s motion to amend the complaint sets forth events occurring from October 26,

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2016 until May 15, 2017, the date he signed his motion. (ECF No. 27.) As the motion alleges

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facts arising after the filing of the original complaint on April 26, 2016, the Court will construe

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the motion as a motion to file a supplemental pleading pursuant to Federal Rule of Civil

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Procedure 15(d).

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Motion to Amend the Complaint

a. Legal Standards
Federal Rule of Civil Procedure 15(d) states, “[o]n motion and reasonable notice, the court

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may, on just terms, permit a party to serve a supplemental pleading setting out any transaction,

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occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R.

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Civ. P. 15(d). “While leave to permit supplemental pleadings is favored, it cannot be used to

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introduce a separate, distinct and new cause of action.” Planned Parenthood of So. Arizona v.

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Neely, 130 F.3d 400, 402 (9th Cir. 1997) (internal quotation marks and citation omitted).

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Generally, district courts use the same standard in deciding whether to grant or deny a

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motion for leave to supplement or whether to grant or deny a motion for leave to amend a

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complaint or answer. See MJC America, Ltd. v. Gree Electric Appliances, Inc. of Zhuhai, CV

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13-04264 SJO (CWx), 2014 WL 12614435, at * 3 (C.D. Cal. Sept. 3, 2014) (citing Womack v.

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Geo Group, Inc., CV-12-1524-PHX-SRB (LOA), 2013 WL 491979, at *5 (D. Ariz. Feb. 8,

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2013)). “Thus, leave to file a supplemental complaint should be freely granted unless there is

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undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the

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opposing party, or the supplement would be futile.” Womack, 2013 WL 491979, at *5 (citations

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omitted).

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b. Plaintiff’s Proposed Supplemental Complaint Allegations
Plaintiff’s proposed supplemental complaint alleges as follows: On October 26, 2016,

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Plaintiff was diagnosed with a single kidney stone. Plaintiff was not seen or treated until March

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2017. At some point, Plaintiff was seen by a urologist, who was referred by Dr. Patel. The

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urologist stated that the kidney stone was “okay.” Plaintiff was hospitalized one month later for

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vomiting blood and abdominal pain. After observation and a CAT scan at San Joaquin
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Community Hospital, Plaintiff was found to have developed multiple kidney stones in both

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kidneys, which required urgent removal.

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On May 3, 2017, Plaintiff underwent a two-hour surgery during which the urologist

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placed two tubes from Plaintiff’s left and right kidneys to his bladder to keep his urinary tract

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open. The after effects of the procedure were and are severely painful. The urologist

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recommended that Plaintiff undergo three separate surgeries. The procedure for Plaintiff’s right

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kidney is scheduled for two weeks after May 3, 2017, and shortly after the tubes will be removed.

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The urologist recommended that Plaintiff be medically treated and given proper

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medication for pain. Dr. Patel placed Plaintiff on Tylenol 3. Plaintiff urinates blood and feels as

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if small razor blades are passing through every time he uses the restroom, and the pain is beyond

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explanation. On May 8, 2017, Plaintiff was sent to San Joaquin Community Hospital for

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bleeding and pain. Plaintiff contends that Dr. Patel’s prescription for Tylenol 3 after his kidney

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surgery is only repeating his history of inadequate medical treatment.

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c. Discussion
Plaintiff essentially alleges that he continues to receive inadequate medical treatment from

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Defendant Patel, and does not name additional defendants. Thus, Plaintiff’s proposed

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supplemental pleading complies with Federal Rule of Civil Procedure 18(a), which permits “[a]

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party asserting a claim” to “join . . . as many claims as it has against an opposing party.”

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However, the facts as alleged fail to pass the test for futility, which “is identical to the one

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used when considering the sufficiency of a pleading challenged under Rule 12(b)(6).” Miller v.

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Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citation omitted). In analyzing whether a

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proposed supplemental pleading is futile, the Court must consider whether the proposed

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supplemental pleading “contain[s] sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Here, Plaintiff attempts to state a claim for deliberate indifference to serious medical

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needs, which requires Plaintiff to show (1) a “serious medical need” by demonstrating that failure

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to treat the condition could result in further significant injury or the unnecessary and wanton

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infliction of pain and (2) the defendant’s response was deliberately indifferent. Jett v. Penner,
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439 F.3d 1091, 1096 (quotations omitted). “Deliberate indifference is a high legal standard,”

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Simmons v. Navajo County Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391

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F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to

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respond to a prisoner’s pain or possible medical need” and the indifference caused harm, Jett, 439

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F.3d at 1096. Negligence, inadvertence, or differences of medical opinion between the prisoner

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and health care providers, however, do not violate the Eighth Amendment. See Jackson v.

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McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);

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Lyons v. Busi, 566 F.Supp.2d 1172, 1191–92 (E.D. Cal. 2008).

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Plaintiff alleges that he received no treatment for his kidney stones between October 26,

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2016 until March 2017, when Dr. Patel referred him to a urologist. However, Plaintiff fails to

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allege any facts indicating that Dr. Patel knew that Plaintiff had been diagnosed with a kidney

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stone, or if he did know, that his lack of treatment during this time was deliberately indifferent to

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Plaintiff’s serious medical need.

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Plaintiff further alleges that the urologist recommended that he be given “a proper

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medication for pain,” and contends that Dr. Patel’s prescribing of Tylenol 3 to address Plaintiff’s

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post-surgery pain was another example of inadequate medical treatment. This too fails to rise to

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the level of deliberate indifference. Dr. Patel prescribed pain medication in response to Plaintiff’s

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need for pain control following his surgeries. Plaintiff alleges no facts showing Dr. Patel could

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have or should have done anything further to address Plaintiff’s pain than to prescribe Tylenol 3.

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Plaintiff’s mere disagreement with the choice of pain medication is not sufficient meet the high

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standard necessary for deliberate indifference.

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For these reasons, Plaintiff’s motion to supplement the complaint in this action (ECF No.
27), is denied.

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II.

Motion for Appointment of Counsel

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Plaintiff argues that the Court should assign counsel because he lacks a meaningful source

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of income and he cannot employ counsel, the issues in his case will require complex discovery

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and medical experts in order to prepare for summary judgment, and assignment of counsel will

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serve the interests of justice and judicial economy. Plaintiff also states that his medical
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conditions hinder his mobility and he must rely on help from other prisoners because he lacks full

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understanding of the law. (ECF No. 28.)

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As Plaintiff was previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Ct. for the S. Dist. of

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Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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1525. Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but

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again does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is

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not well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. As previously indicated, this Court is faced with similar

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cases involving claims of deliberate indifference to serious medical needs almost daily. These

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prisoners also must conduct legal research and prosecute claims without the assistance of counsel.

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Based on a review of the record in this case, the Court does not find that Plaintiff cannot

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adequately articulate his claims. Id.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Although the Court has determined Plaintiff has stated

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cognizable claims which may proceed in litigation, it has not determined that those claims have a

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likelihood of being ultimately successful.

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III.

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Accordingly, it is HEREBY ORDERED as follows:

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1. Plaintiff’s motion to amend the complaint, (ECF No. 27), is DENIED; and

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2. Plaintiff’s second motion for the appointment of counsel, (ECF No. 28), is DENIED

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Conclusion and Order

without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 1, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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