Simmons v. Mischel et al

Filing 28

Order by Magistrate Judge Virginia K. DeMarchi denying 21 Motion for Leave to File a Supplemental Pleading. (vkdlc1S, COURT STAFF) (Filed on 12/18/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7
JOYCE MARIE SIMMONS,

8

Plaintiff,

9
v.

10

T. MISCHEL, et al.,

11

United States District Court
Northern District of California

Case No.18-cv-02193-VKD

Defendants.

12

ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
SUPPLEMENTAL PLEADING
Re: Dkt. No. 21

13
14

Joyce Marie Simmons, a federal prisoner, filed the instant pro se civil rights action against

15

prison officials at the Federal Correctional Institution in Dublin, California (“FCI-Dublin”). Dkt.

16

No. 1. On September 14, 2018, the Court ordered the matter served on Defendants. Dkt. No. 14

17

at 2, 8. The Court denied Ms. Simmons’s motions for leave to file a supplemental pleading

18

without prejudice and granted her another opportunity to file a supplemental pleading to correct

19

certain deficiencies. Id. at 5–6. Ms. Simmons has filed such a motion, which is now before the

20

Court for an initial screening. Dkt. No. 21. The Court liberally construes this section 1983

21

complaint as a Bivens action for the reasons discussed below.

22

I.

STANDARD OF REVIEW

23

A federal court must conduct a preliminary screening in any case in which a prisoner seeks

24

redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

25

§ 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims

26

that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

27

monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),

28

(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901

1

F.2d 696, 699 (9th Cir. 1988); Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003).
The Court may permit a party to serve a supplemental pleading “setting out any

2
3

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

4

Fed. R. Civ. P. 15(d). The power to permit supplemental pleadings is discretionary and such

5

pleadings may be authorized upon such terms as are just. Id. Supplemental pleading by a plaintiff

6

is optional; claims not filed in a supplemental complaint may be filed in a separate lawsuit. See

7

Manning v. City of Auburn, 953 F.2d 1355, 1359–60 (11th Cir. 1992). While leave to permit

8

supplemental pleading is favored, it cannot be used to introduce a new and distinct cause of action.

9

See Planned Parenthood of So. Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997). Matters
newly alleged in a supplemental complaint must have some relation to the claim(s) set forth in the

11

United States District Court
Northern District of California

10

original pleading. See Keith v. Volpe, 858 F.2d 467, 474 (9th Cir. 1988). Leave to file a

12

supplemental pleading therefore may not be granted where the supplemental pleading involves a

13

new and distinct cause of action that should be the subject of a separate suit. See Neely, 130 F.3d

14

at 402 (abuse of discretion to allow plaintiffs to supplement complaint after final judgment to

15

attack newly amended statute); cf. Griffin v. County Sch. Bd. of Prince Edward Cty., 377 U.S. 218,

16

226 (1964) (supplemental pleading proper where new transactions not new cause of action, but

17

merely part of “same old cause of action” originally raised).

18

II.

DISCUSSION

19

A.

20

Ms. Simmons’s original complaint was styled as an action under 42 U.S.C. § 1983 (Dkt.

Nature of the Action

21

No. 1), and the Court treated it as such in is initial screening review. Dkt. No. 14. That review

22

was in error, as the complaint challenges the actions of federal employees at FCI-Dublin and not

23

actions under color of state law. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.

24

388, 392–97 (1971) (recognizing a private right of action for damages for constitutional violations

25

by federal employees or their agents).

26

However, the Court will construe Ms. Simmons’s complaint as a Bivens action, and not as

27

a section 1983 action, consistent with the Ninth Circuit’s liberal construction requirements. See

28

Jackson, 353 F.3d at 757; see also Paige v. Geo Group, Oakland Center, No. 17-cv-06116-HSG
2

1

(PR), slip op. at 2 (N.D. Cal. Feb. 27, 2018) (construing section 1983 action as a Bivens claim in

2

complaint by pro se prisoner); Lloyd v. Corrections Corp. of America, 855 F. Supp. 221, 222

3

(W.D. Tenn. 1994) (same).
To state a Bivens claim, a plaintiff must allege that the defendant violated a federal

5

constitutional right while acting under color of federal law. See Martin v. Sias, 88 F.3d 774, 775

6

(9th Cir. 1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991)). In its initial

7

screening order, the Court determined that Ms. Simmons had adequately stated claims for

8

violations of the First, Eighth, and Fourteenth Amendments. Dkt. No. 14. The same alleged

9

violations are cognizable as Bivens claims against the named federal actors for the same reasons

10

such violations would be cognizable as section 1983 claims against state actors. See Van Strum,

11

United States District Court
Northern District of California

4

940 F.3d at 409.

12

B.

13

Ms. Simmons’s motion for leave to file supplemental pleading alleges a new Eighth

14

Amendment claim against Defendant K. Luke for violating her safety by approving use of a prison

15

uniform that did not correspond to Ms. Simmons’s security level. Dkt. No. 21. Officer Duke is

16

already a party to this action, which is one of the requirements for joinder under Rule 18(a) of the

17

Federal Rules of Civil Procedure. However, Ms. Simmons’s new claim does not appear to relate

18

to any of her existing claims. Moreover, it appears that the proposed supplemental pleading refers

19

to a more recent incident than the matters already raised against Officer Luke, and so it is not

20

based on a “transaction, occurrence, or event that happened after the date of the pleading to be

21

supplemented.” See Fed. R. Civ. P. 15(d) (emphasis added). Ms. Simmons does not explain how

22

this new claim relates to any of the claims found cognizable in her original complaint, and the

23

Court cannot discern any relationship.

Proposed Supplemental Pleading

24

The Court concludes that the alleged Eighth Amendment safety violation asserted against

25

Officer Luke describes a new and distinct cause of action that should be the subject of a separate

26

action. See Neely, 130 F.3d at 402. Ms. Simmons’s motion for leave to file a supplemental

27

pleading is therefore denied.

28
3

1

III.

CONCLUSION
For the foregoing reasons, the Court orders as follows:

2
1.

Ms. Simmons’s motion for leave to file a supplemental pleading is denied. If she

3
wishes to pursue the claim, she may do so by filing it as a new Bivens action.
4
2.
5

The Court construes the existing complaint as a Bivens action. The claims found

cognizable under the First, Eighth, and Fourteenth Amendments in the Court’s initial screening

6
order (Dkt. No. 14) may proceed as Bivens claims against the federal actors. Defendants may file
7
a motion for summary judgment or other dispositive motion according to the current case
8
management scheduled. See Dkt. No. 27.
9
IT IS SO ORDERED.
10
Dated: December 18, 2018

United States District Court
Northern District of California

11
12
13

VIRGINIA K. DEMARCHI
United States Magistrate Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4