Mester v. Malakkla et al

Filing 38

ORDER signed by Magistrate Judge Allison Claire on 06/03/19 DENYING 32 , 34 and 35 requests to amend complaint; denying 36 request to merge 2:18-cv-2456 KJM EFB P with this action; and DENYING 37 request that defendants be ordered to file a response to his complaint. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MORRIS MESTER,

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Plaintiff,

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No. 2:17-cv-1781 AC P

v.

ORDER

N. MALAKKLA, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

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rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to this court

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Currently before the court are plaintiff’s multiple requests to amend his complaint (ECF

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Nos. 32, 34, 35), a request to merge a separate action with the instant one (ECF No. 36), and a

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request to direct defendants to reply to his complaint (ECF No. 37). For the reasons stated below,

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the court will deny plaintiff’s requests to amend as moot. Plaintiff’s request to merge a separate

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matter with this one will also be denied as moot. In addition, the court will deny as premature

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plaintiff’s request to direct defendants to file a reply to his complaint. Finally, under separate

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order, the court shall direct the United States Marshal’s Office to serve the complaint on

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defendants.

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I.

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RELEVANT FACTS
On August 25, 2017, plaintiff filed a complaint and a motion for preliminary injunction.

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ECF Nos. 1, 5. On August 30, 2017, the court screened the complaint, and plaintiff was given the

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opportunity to amend it. See ECF No. 6. Thereafter, over the next several months, plaintiff filed,

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and the court addressed, multiple motions and requests that were unrelated to the complaint (see

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ECF Nos. 11, 12, 14, 16, 17) as well as a deficient “supplement” to the complaint (see ECF No.

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9).

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Eventually, on May 25, 2018, the court re-screened the complaint. See ECF No. 19. At
that time, the court gave plaintiff the choice of either amending it a final time or proceeding with

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the current one. See id. at 16-17. On June 4, 2018, plaintiff filed notice with the court of his

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intent not to amend the complaint and to instead proceed with the instant one. See ECF No. 21.

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Thereafter, on June 25, 2018, the court ordered plaintiff to submit the requisite service documents

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and copies of the complaint to the court. ECF No. 27. After filing an inadequate series of

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documents the first time (see ECF Nos. 28, 30), plaintiff eventually filed the appropriate

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documents on July 18, 2018 (see ECF No. 31).

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Shortly thereafter, over the next two months, plaintiff filed the first of several requests to

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amend his complaint. See ECF Nos. 32, 34, 35. On December 4, 2018, plaintiff also filed the

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instant request to consolidate this action with Mester v. Church, No. 2:18-cv-2456 KJM EFB P

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(“Church”), which had also been filed in this court. See ECF No. 36. On January 31, 2019,

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plaintiff filed a request that the court order defendants to reply to his complaint. ECF No. 37.

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II.

DISCUSSION

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A.

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Plaintiff’s July and September 2018 requests to amend (ECF Nos. 32, 34, 35) will be

Plaintiff’s Requests to Amend

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denied for several reasons. First, parties are typically given one opportunity to amend a

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complaint. See Fed. R. Civ. P. 15(a)(1)(A), (2). Plaintiff has already been given the opportunity

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to amend on two separate occasions. See ECF Nos. 6, 19.

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Second, on June 4, 2018, plaintiff informed the court that he wished to proceed with the
instant complaint and not to amend it. See ECF No. 21. Considerations of judicial efficiency
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lean toward holding plaintiff to this choice. See Fed. R. Civ. P. 1 (stating court has interest in

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just, speedy and inexpensive determination of every action and proceeding); see also

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Phenylpropanolamine, 460 F.3d at 1227 (stating orderly and expeditious resolution of disputes is

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of great importance to rule of law and delay in reaching merits is costly in money, memory,

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manageability, and confidence in process).

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Third, after filing the requests to amend, on January 31, 2019, plaintiff filed another

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document stating that he would like to move forward with the claims the court had already

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determined were cognizable, instead of amending the complaint again. See ECF No. 37. For

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these reasons, the court will deny plaintiff’s motions to amend as moot.

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Even if plaintiff had not effectively withdrawn his requests to amend, amendment would

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be inappropriate because the claims plaintiff had wished to add to his complaint are not

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cognizable. In the two proffered claims, plaintiff alleges cruel and unusual punishment,

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deliberate indifference, and/or retaliation against two additional defendants on the grounds that on

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singular, unrelated occasions: (1) plaintiff was denied methadone and left only with Motrin for

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pain management after he refused to take his methadone prescription earlier that day (see ECF

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No. 32 at 1-3), and (2) he was prescribed a lidocaine patch for his pain “instead of a more

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compatible opioid” and had a negative reaction which was consistent with the warnings on the

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prescription label (see ECF No. 34 at 1-3). These incidents are unrelated to the claims plaintiff

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has stated against the currently named defendants, and do not arise out of the same facts. While

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leave to permit a supplemental pleading is favored, it cannot be used to introduce a separate,

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distinct, and new cause of action. See Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400,

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402 (9th Cir. 1997) (per curiam) (internal citations and quotations omitted).

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Moreover, even if these were not separate causes of action, these claims challenge courses

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of treatment chosen by medical professionals. A difference of opinion between a physician and a

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prisoner concerning what medical care is appropriate does not amount to deliberate indifference.

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See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (citation omitted). Rather, to

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establish deliberate indifference, a plaintiff must show that that the course of treatment the

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doctors chose was medically unacceptable under the circumstances and that they chose the course
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in conscious disregard of an excessive risk to the plaintiff’s health. See Jackson v. McIntosh, 90

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F. 3d 330, 332 (9th Cir. 1996). The facts plaintiff has presented do not do this.

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For all these reasons, leave to amend will be denied.

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B.

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Plaintiff seeks consolidation of this action with Church, supra. Review of the record in

Plaintiff’s Request to Consolidate Cases

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Church indicates that plaintiff filed a notice of voluntary dismissal on December 4, 2018, and the

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case was closed three days later. See Church, ECF Nos. 11, 12. Because Church has been

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closed, it cannot be consolidated with the instant action.

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C.

Plaintiff’s Request that Defendants Be Ordered to Reply

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Plaintiff’s January 2019 request that defendants be ordered to file a response to his

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complaint shall also be denied. Defendants have yet to be served with plaintiff’s complaint. As a

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result, this request is premature and will be denied as such.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s requests to amend his complaint (see ECF Nos. 32, 34, 35) are DENIED as

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moot;
2. Plaintiff’s December 4, 2018 request to merge Mester v. Church, No. 2:18-cv-2456
KJM EFB P with this action (ECF No. 36) is DENIED as moot, and
3. Plaintiff’s January 31, 2019 request that defendants be ordered to file a response to his

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complaint (ECF No. 37), is DENIED as premature.

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DATED: June 3, 2019

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