(PC) Singh v. Nicolas

Filing 52

ORDER signed by Magistrate Judge Kendall J. Newman on 7/14/2021 GRANTING plaintiff's 50 motion to amend, construed as a motion to file a supplemental complaint. Within 21 days, defendant Aguilera shall file a response to the 51 supplemental complaint. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BALJIT SINGH,

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No. 2: 19-cv-2048 KJN P
Plaintiff,

v.

ORDER

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NICOLAS AGUILERA, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff and defendant Nicolas Aguilera consented to the jurisdiction of the

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undersigned.

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Pending before the court is plaintiff’s unopposed motion for leave to file an amended

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complaint. (ECF No. 50.) For the reasons stated herein, plaintiff’s motion to file an amended

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complaint is granted.

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Discussion

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Original Complaint and Proposed Amended Complaint

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This action proceeds on plaintiff’s original complaint filed October 12, 2019, as to

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defendant Aguilera. (ECF No. 1.) Plaintiff alleges that in June 2017, at the California Medical

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Facility (“CMF”), defendant Aguilera provided inadequate medical care in violation of the Eighth

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Amendment by failing to treat an infection in plaintiff’s left ear. Plaintiff alleges that defendant’s
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failure to treat his left ear infection caused plaintiff to suffer severe hearing loss in his left ear.

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Plaintiff also alleges that defendant failed to treat plaintiff’s left ear pain and headaches in July

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2018.

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The proposed amended complaint includes the same allegations against defendant

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Aguilera as contained in the original complaint. (ECF No. 51 at 3-4.) The proposed amended

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complaint names two new defendants: Dr. Ullery and W. Vaughn. (Id. at 2.) Plaintiff alleges

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that after he (plaintiff) arrived at Mule Creek State Prison (“MCSP”) in March 2019, defendant

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Ullery failed to send plaintiff to an ENT specialist appointment at Highland Medical Center in

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Oakland for surgery on his left ear. (Id. at 5.) Plaintiff alleges that this surgery was already

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approved by CMF. (Id.)
Plaintiff alleges that defendant Ullery also failed to follow the recommendations of a

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previous ENT specialist, Dr. Murton at Twin Cities Community Hospital, for plaintiff to have

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surgery within a certain time frame. (Id.) Plaintiff alleges that as a result of the delay in his

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surgery, on April 7, 2021 an ENT specialist at the Highland Medical Center informed plaintiff

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that the surgery could not be performed due to the delay. (Id.) The ENT specialist told plaintiff

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that because his ear injury had progressed to 100% total perforation, the ENT specialist had to

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refer plaintiff to UCSF for surgery. (Id.)

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Plaintiff alleges that defendant Vaughn, the MCSP Chief Physician and Surgeon, failed to

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look into plaintiff’s complaints during the health care grievance process, causing further delay to

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plaintiff’s left ear surgery. (Id.)

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Legal Standards

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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). Rule 15 distinguishes between supplementing and amending a complaint. “In an

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amended complaint, a party may replead or add facts or claims arising prior to or

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contemporaneously with the allegations of the original complaint.” Sanford v. Eaton, 2020 WL

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6484099, at *1 (E.D. Cal. Nov. 4, 2020) (citing United States v. Hicks, 283 F.3d 380, 385 (D.C.
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Cir. 2002); Flaherty v. Lang, 199 F.3d 607, 613 n.3 (2d. Cir. 1999)). A supplemental complaint

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addresses matters occurring after the original complaint is filed. Fed. R. Civ. P. 15(d).

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Because plaintiff’s proposed amendments involve matters occurring after the original

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complaint was filed, the undersigned construes the pending motion as a motion to file a

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supplemental complaint.

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“Rule 15(d) is intended to give district courts broad discretion in allowing supplemental

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pleadings.” Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988). “In deciding whether to permit a

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supplemental pleading, a court’s focus is on judicial efficiency.” Yates v. Auto City 76, 299

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F.R.D. 611, 613 (N.D. Cal. 2013) (citing Planned Parenthood of S. Az. v. Neely, 130 F.3d 400,

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402 (9th Cir. 1997)). The use of supplemental pleadings is “favored” because it enables a court to

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award complete relief in one action “to avoid the cost, delay and waste of separate actions which

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must be separately tried and prosecuted.” Keith, 858 F.2d at 473 (citing New Amsterdam Cas.

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Co. v. Waller, 323 F.2d 20, 28–29 (4th Cir. 1963), cert. denied, 367 U.S. 963 (1964); Yates, 299

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F.R.D. at 613 (citation omitted)). The Supreme Court has stated that new claims, new parties,

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and events occurring after the original action are all properly permitted under Rule 15(d). Keith,

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858 F.2d at 475 (citing Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218,

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226–27 (1964)). Moreover, even though supplemental proceedings are “favored,” they “cannot

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be used to introduce a separate, distinct, and new cause of action.” Neely, 130 F.3d at 402

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(citations omitted). Rather, matters newly alleged in a supplemental complaint must have “some

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relation to the claims set forth in the original pleading.” Keith, 858 F.2d at 474. “[T]he fact that a

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supplemental pleading technically states a new cause of action should not be a bar to its

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allowance, but only a factor to be considered by the court in the exercise of discretion...” Id.

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“The legal standard for granting or denying a motion to supplement under Rule 15(d) is

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the same as the standard for granting or denying a motion under Rule 15(a).” Yates, 299 F.R.D.

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at 614 (citing Athena Feminine Techs., Inc. v. Wilkes, 2013 WL 450147, at *2 (N.D. Cal. Feb. 6,

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2013)) (internal quotations omitted). Courts commonly apply the five Foman factors to Rule

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15(d) motions: (1) undue delay; (2) bad faith or dilatory motive on the part of the movant;

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(3) repeated failure of previous amendments; (4) undue prejudice to the opposing party; and (5)
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futility of the amendment. Lyon v. U.S. Immigr. & Customs Enf't, 308 F.R.D. 203, 214 (N.D.

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Cal. 2015) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); Natural Resources Defense

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Council v. Kempthorne, 2016 WL 8678051 (E.D. Cal. Apr. 22, 2016). Among these five factors,

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“it is the consideration of prejudice to the opposing party that carries the greatest weight.”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent prejudice

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or a ‘strong showing’ of any other Foman factor, there is a presumption in favor of granting leave

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to supplement.” Lyon, 308 F.R.D. at 214 (citing Eminence Capital, LLC, 316 F.3d at 1052)).

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Supplementation should be permitted where doing so would serve Rule 15(d)’s goal of judicial

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efficiency, and a court should assess whether an entire controversy can be settled in one action.

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See Neely, 130 F.3d at 402.

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Analysis

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At the outset, the undersigned observes that plaintiff’s proposed new claims against new

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defendants Ullery and Vaughn are related to the original claims against defendant Aguilera. The

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claims against all three defendants concern the treatment of plaintiff’s left ear following the 2017

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ear infection.
Turning to the first Foman factor, plaintiff alleges that defendants Ullery and Vaughn

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delayed his left ear surgery following his transfer to MCSP in March 2019. Plaintiff alleges that

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in April 2021 he discovered that the surgery could not be performed due to these delays. Based

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on these circumstances, the undersigned does not find that plaintiff unduly delayed in raising his

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claims against defendants Ullery and Vaughn in the proposed supplemental complaint.

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Turning to the second Foman factor, the undersigned does not find that plaintiff acted in

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bad faith or with dilatory motive in filing his proposed supplemental complaint. Because plaintiff

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has not previously amended or supplemented his complaint, the undersigned finds that the third

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Foman factor weighs in plaintiff’s favor. Based on defendant Aguilera’s failure to oppose

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plaintiff’s motion to file a supplemental complaint, the undersigned finds that defendant has not

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demonstrated prejudice. 1 As for the fifth Foman factor, the undersigned finds that plaintiff’s

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Following an unsuccessful settlement conference, the undersigned issued a discovery and
scheduling order on March 12, 2021. (ECF No. 47.) The discovery deadline for plaintiff and
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proposed supplemental complaint states potentially colorable claims for relief against defendants

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Ullery and Vaughn. Therefore, amendment is not futile.

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Accordingly, for the reasons discussed above, plaintiff’s motion to file a supplemental

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complaint is granted. The undersigned orders service of defendants Ullery and Vaughn by

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separate order.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion to amend (ECF No. 50), construed as a motion to file a
supplemental complaint, is granted;

2. Within twenty-one days of the date of this order, defendant Aguilera shall file a
response to the supplemental complaint.
Dated: July 14, 2021

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Sing2048.ord

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defendant Aguilera is July 16, 2021 and the dispositive motion deadline is October 8, 2021. (Id.)
Allowing new defendants will delay resolution of this action, although not significantly.
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