1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES RAY CATHY, Case No.: 3:22-cv-01565-GPC-JLB CDCR #V-39913, 12 ORDER DENYING MOTION FOR Plaintiff, 13 RECONSIDERATION AND vs. GRANTING LEAVE TO FILE 14 SUPPLEMENTAL COMPLAINT PALMA, Correctional Officer; 15 PURSUANT TO Fed. R. Civ. P. 15(d) MORALES, Correctional Officer;
16 V. DORSEY, Correctional Officer; [ECF Nos. 7, 8] A. AMAT, Correctional Officer; 17 E. URIBE, Correctional Officer; 18 J. ANGULO, Correctional Sergeant; ALVAREZ, Correctional Officer, 19 Defendants. 20 21 22 I. Procedural Background 23 Plaintiff Charles Ray Cathy, incarcerated at Calipatria State Prison, is proceeding 24 pro se and filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 with the Clerk of the 25 Court on October 7, 2022. See Compl., ECF No. 1. Plaintiff alleges Defendants used 26 excessive force, failed to protect, and retaliated against him in July and August 2022, 27 because he filed prison grievances reporting misconduct. Id. at 4, 12. 28 / / / 1 Plaintiff did not pay the $402 civil filing fee 28 U.S.C. § 1914(a) requires to 2 commence a civil action at the time he submitted his Complaint to the Clerk. Nor did he 3 seek leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Instead, on 4 October 25, 2022, he paid the $402 civil filing fee in full. See ECF No. 3 (Receipt No. 5 CAS141401). Because he is a prisoner, however, the Court conducted its mandatory 6 screening of his Complaint as required by 28 U.S.C. § 1915A and on January 19, 2023, 7 found it contained plausible First and Eighth Amendment claims not subject to sua sponte 8 dismissal. See ECF No. 5 at 2‒4. The Court also denied Plaintiff’s Motion for U.S. Marshal 9 service pursuant to Fed. R. Civ. P. 4(c)(3) as premature, but directed the Clerk to issue a 10 summons and provide him with blank AO 399 Waiver of Service of Summons Forms so 11 that he could request and procure waivers of personal service from each Defendant on his 12 own. See ECF No. 5 at 2‒7. 13 On February 24, 2023, Plaintiff filed a motion seeking reconsideration of the Court’s 14 January 19, 2023 Order and again requested the U.S. Marshal’s assistance because he had 15 limited access to the law library during a prison lockdown, and difficulty making 16 photocopies of his proofs of service. See ECF No. 7. However, on March 31, 2023, Plaintiff 17 filed a subsequent motion seeking leave to file a supplemental complaint pursuant to Fed. 18 R. Civ. P. 15(d), and acknowledging Defendants’ interim waivers of personal service. See 19 ECF No. 8 at 1. 20 In fact, on April 24, 2023, Defendants filed an ex parte Motion for extension of time 21 in which to file a response to Plaintiff’s Complaint, in which they admit to having returned 22 executed waivers of service as to Plaintiff’s original Complaint to him via U.S. Mail on 23 March 24, 2023. See ECF No. 9-1 at 2 ¶ 2. On April 27, 2023, the Court granted 24 Defendants’ request and ordered a responsive pleading on or before June 12, 2023. See 25 ECF No. 10. 26 Accordingly, the Court DENIES Plaintiff’s Motion for Reconsideration seeking 27 U.S. Marshal service as moot and GRANTS his Motion for leave to file a supplemental 28 pleading pursuant to Fed. R. Civ. P. 15(d) for the reasons explained below. 1 II. Motion for Leave to File a Supplemental Complaint 2 Where a plaintiff seeks to add claims that arose after the date he filed his complaint, 3 he may move to file a supplemental complaint pursuant to Fed. R. Civ. P. 15(d). See Rhodes 4 v. Robinson, 621 F.3d 1002, 1006‒07 (9th Cir. 2010); Fed. R. Civ. P. 15(d) (“On motion 5 and reasonable notice, the court may, on just terms, permit a party to serve a supplemental 6 pleading setting out any transaction, occurrence, or event that happened after the date of 7 the pleading to be supplemented.”); Brown v. Deputy #1, No. 12-cv-1938-GPC-BGS, 2013 8 WL 5536371 at *6 (S.D. Cal. June 24, 2013) (“A supplemental pleading is used to allege 9 relevant facts occurring after the original pleading was filed.”). 10 Plaintiff “moves for leave to add events that are in relation[] to [his] original 11 Complaint,” does not wish to “replace” his original complaint, and instead seeks to file a 12 supplemental complaint alleging “facts [that] have arisen since [his] earlier complaint” was 13 filed on October 7, 2022. See ECF No. 8 at 1. Plaintiff specifically invokes Federal Rule 14 of Civil Procedure 15(d), and claims the supplemental complaint he seeks leave to file will 15 “contain those events.” Id. Plaintiff also makes reference to the “exhaustion” of CDCR 602 16 Grievance Log No. 376112, which he attaches as Exhibit A. Id. at 1, 2‒4.1 This grievance, 17 which appears to have been received by CDCR appeals officials on March 16, 2023, 18 contains allegations of excessive force and stolen property occurring on March 7, 2023. Id. 19 The grievance identifies Defendant Morales, who is alleged to have referred to Plaintiff’s 20 “lawsuit,” but it also contains allegations of wrongdoing on the part of several additional 21 correctional officials who are not already named as parties to this case. See id. at 4. 22 “‘Rule 15(d) permits the filing of a supplemental pleading which introduces a cause 23 of action not alleged in the original complaint and not in existence when the original 24
25 1 The Court notes that new claims alleged in a supplemental pleading must be exhausted 26 prior to filing and will be considered “brought” pursuant to 42 U.S.C. § 1997e(a) at the 27 time Plaintiff tenders his supplemental pleading to the Clerk of Court for filing. See Rhodes, 621 F.3d at 1005; see also Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012). 28 1 complaint was filed.’” Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir. 2 1998) (citation omitted). Thus, because Rule 15(d) “plainly permits supplemental 3 amendments to cover events happening after suit, … it follows, of course, that persons 4 participating in these new events may be added if necessary.” Griffin v. County School 5 Board, 377 U.S. 218, 226‒27 (1964); see also Vanguard Med. Mgmt. Billing, Inc. v. Baker, 6 2018 WL 6137190, at *4 (C.D. Cal. Aug. 30, 2018) (“[S]upplemental pleading may seek 7 to bring in additional parties[,] plaintiff or defendant[,] when the subsequent events alleged 8 in the new pleading make it necessary to join them.”) (citing 6A Fed. Prac. & Proc. Civ. 9 § 1507 (2018) (emphasis added)). 10 “While some relationship must exist between the newly alleged matters and the 11 subject of the original action, they need not all arise out of the same transaction.” Keith v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES RAY CATHY, Case No.: 3:22-cv-01565-GPC-JLB CDCR #V-39913, 12 ORDER DENYING MOTION FOR Plaintiff, 13 RECONSIDERATION AND vs. GRANTING LEAVE TO FILE 14 SUPPLEMENTAL COMPLAINT PALMA, Correctional Officer; 15 PURSUANT TO Fed. R. Civ. P. 15(d) MORALES, Correctional Officer;
16 V. DORSEY, Correctional Officer; [ECF Nos. 7, 8] A. AMAT, Correctional Officer; 17 E. URIBE, Correctional Officer; 18 J. ANGULO, Correctional Sergeant; ALVAREZ, Correctional Officer, 19 Defendants. 20 21 22 I. Procedural Background 23 Plaintiff Charles Ray Cathy, incarcerated at Calipatria State Prison, is proceeding 24 pro se and filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 with the Clerk of the 25 Court on October 7, 2022. See Compl., ECF No. 1. Plaintiff alleges Defendants used 26 excessive force, failed to protect, and retaliated against him in July and August 2022, 27 because he filed prison grievances reporting misconduct. Id. at 4, 12. 28 / / / 1 Plaintiff did not pay the $402 civil filing fee 28 U.S.C. § 1914(a) requires to 2 commence a civil action at the time he submitted his Complaint to the Clerk. Nor did he 3 seek leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Instead, on 4 October 25, 2022, he paid the $402 civil filing fee in full. See ECF No. 3 (Receipt No. 5 CAS141401). Because he is a prisoner, however, the Court conducted its mandatory 6 screening of his Complaint as required by 28 U.S.C. § 1915A and on January 19, 2023, 7 found it contained plausible First and Eighth Amendment claims not subject to sua sponte 8 dismissal. See ECF No. 5 at 2‒4. The Court also denied Plaintiff’s Motion for U.S. Marshal 9 service pursuant to Fed. R. Civ. P. 4(c)(3) as premature, but directed the Clerk to issue a 10 summons and provide him with blank AO 399 Waiver of Service of Summons Forms so 11 that he could request and procure waivers of personal service from each Defendant on his 12 own. See ECF No. 5 at 2‒7. 13 On February 24, 2023, Plaintiff filed a motion seeking reconsideration of the Court’s 14 January 19, 2023 Order and again requested the U.S. Marshal’s assistance because he had 15 limited access to the law library during a prison lockdown, and difficulty making 16 photocopies of his proofs of service. See ECF No. 7. However, on March 31, 2023, Plaintiff 17 filed a subsequent motion seeking leave to file a supplemental complaint pursuant to Fed. 18 R. Civ. P. 15(d), and acknowledging Defendants’ interim waivers of personal service. See 19 ECF No. 8 at 1. 20 In fact, on April 24, 2023, Defendants filed an ex parte Motion for extension of time 21 in which to file a response to Plaintiff’s Complaint, in which they admit to having returned 22 executed waivers of service as to Plaintiff’s original Complaint to him via U.S. Mail on 23 March 24, 2023. See ECF No. 9-1 at 2 ¶ 2. On April 27, 2023, the Court granted 24 Defendants’ request and ordered a responsive pleading on or before June 12, 2023. See 25 ECF No. 10. 26 Accordingly, the Court DENIES Plaintiff’s Motion for Reconsideration seeking 27 U.S. Marshal service as moot and GRANTS his Motion for leave to file a supplemental 28 pleading pursuant to Fed. R. Civ. P. 15(d) for the reasons explained below. 1 II. Motion for Leave to File a Supplemental Complaint 2 Where a plaintiff seeks to add claims that arose after the date he filed his complaint, 3 he may move to file a supplemental complaint pursuant to Fed. R. Civ. P. 15(d). See Rhodes 4 v. Robinson, 621 F.3d 1002, 1006‒07 (9th Cir. 2010); Fed. R. Civ. P. 15(d) (“On motion 5 and reasonable notice, the court may, on just terms, permit a party to serve a supplemental 6 pleading setting out any transaction, occurrence, or event that happened after the date of 7 the pleading to be supplemented.”); Brown v. Deputy #1, No. 12-cv-1938-GPC-BGS, 2013 8 WL 5536371 at *6 (S.D. Cal. June 24, 2013) (“A supplemental pleading is used to allege 9 relevant facts occurring after the original pleading was filed.”). 10 Plaintiff “moves for leave to add events that are in relation[] to [his] original 11 Complaint,” does not wish to “replace” his original complaint, and instead seeks to file a 12 supplemental complaint alleging “facts [that] have arisen since [his] earlier complaint” was 13 filed on October 7, 2022. See ECF No. 8 at 1. Plaintiff specifically invokes Federal Rule 14 of Civil Procedure 15(d), and claims the supplemental complaint he seeks leave to file will 15 “contain those events.” Id. Plaintiff also makes reference to the “exhaustion” of CDCR 602 16 Grievance Log No. 376112, which he attaches as Exhibit A. Id. at 1, 2‒4.1 This grievance, 17 which appears to have been received by CDCR appeals officials on March 16, 2023, 18 contains allegations of excessive force and stolen property occurring on March 7, 2023. Id. 19 The grievance identifies Defendant Morales, who is alleged to have referred to Plaintiff’s 20 “lawsuit,” but it also contains allegations of wrongdoing on the part of several additional 21 correctional officials who are not already named as parties to this case. See id. at 4. 22 “‘Rule 15(d) permits the filing of a supplemental pleading which introduces a cause 23 of action not alleged in the original complaint and not in existence when the original 24
25 1 The Court notes that new claims alleged in a supplemental pleading must be exhausted 26 prior to filing and will be considered “brought” pursuant to 42 U.S.C. § 1997e(a) at the 27 time Plaintiff tenders his supplemental pleading to the Clerk of Court for filing. See Rhodes, 621 F.3d at 1005; see also Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012). 28 1 complaint was filed.’” Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir. 2 1998) (citation omitted). Thus, because Rule 15(d) “plainly permits supplemental 3 amendments to cover events happening after suit, … it follows, of course, that persons 4 participating in these new events may be added if necessary.” Griffin v. County School 5 Board, 377 U.S. 218, 226‒27 (1964); see also Vanguard Med. Mgmt. Billing, Inc. v. Baker, 6 2018 WL 6137190, at *4 (C.D. Cal. Aug. 30, 2018) (“[S]upplemental pleading may seek 7 to bring in additional parties[,] plaintiff or defendant[,] when the subsequent events alleged 8 in the new pleading make it necessary to join them.”) (citing 6A Fed. Prac. & Proc. Civ. 9 § 1507 (2018) (emphasis added)). 10 “While some relationship must exist between the newly alleged matters and the 11 subject of the original action, they need not all arise out of the same transaction.” Keith v. 12 Volpe, 858 F.2d 467, 474 (9th Cir. 1988). “Under the Rule, allowance or denial of leave to 13 file a supplemental pleading is addressed to the sound discretion of the District Court.” Id. 14 at 475. The court’s primary focus is on judicial efficiency. See Yates v. Auto City 76, 299 15 F.R.D. 611, 613 (N.D. Cal. 2013) (citing Planned Parenthood of S. Az. v. Neely, 130 F.3d 16 400, 402 (9th Cir. 1997)). The use of supplemental pleadings is favored when it enables a 17 court to award complete relief in one action “to avoid the cost, delay and waste of separate 18 actions which must be separately tried and prosecuted.” Keith, 858 F.2d at 473 (citations 19 omitted); see also Moore v. Lankford, No. 19CV2406-DMS (BLM), 2020 WL 3129563, 20 at *1 (S.D. Cal. June 12, 2020) (citing William Inglis & Sons Baking Co. v. ITT Cont’l 21 Baking Co., 668 F.2d 1014, 1057 (9th Cir. 1981)). 22 In deciding whether to grant leave to amend pursuant to Fed. R. Civ. P. 15(a) or to 23 supplement his original pleading pursuant to Fed. R. Civ. P. 15(d), courts consider the 24 Foman factors: (1) undue delay, (2) bad faith or dilatory motive on the part of the movant, 25 (3) repeated failure of previous amendments, (4) undue prejudice to the opposing party, 26 and (5) futility of the amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962); Lyon v. 27 ICE, 308 F.R.D. 203, 214 (N.D. Cal. 2015) (“The legal standard for granting or denying a 28 motion to supplement under Rule 15(d) is the same as for amending one under 15(a).”). 1 Here, Plaintiff explicitly seeks to supplement his original pleading with new facts 2 related to related events arising after the initiation of his case and involving at least one of 3 ||the Defendants originally named as a party. See ECF No. 8 at 1 & Ex. A at 4. Based on 4 || Plaintiff's motion alone, the Court finds no undue delay, suggestion of bad faith, or dilatory 5 || motive on Plaintiff’s part. Plaintiff’s case is still in its initial stages, he has not amended 6 || before, nothing in his motion indicates his intended supplemental claims would be futile, 7 Defendants have yet to file any responsive pleading. Therefore, the Court finds all the 8 || Foman factors weigh in Plaintiffs favor. 9 Conclusion 10 Accordingly, the Court DENIES Plaintiff's Motion for Reconsideration (ECF No. 11 as moot and GRANTS Plaintiff's Motion for leave to file a supplemental complaint 12 || pursuant to Fed. R. Civ. P. 15(d) (ECF No. 8). Plaintiff must clearly title his pleading as 13 ||his Supplemental Complaint, include Civil Case No. 22-cv-1565-GPC-JLB in its caption, 14 || file it with the Clerk of the Court, and serve it upon Defendants no later than June 5, 15 2023. 16 IT IS SO ORDERED. 17 || Dated: May 2, 2023 □□ 18 Cor 2aho Coke 19 United States District Judge 20 21 22 23 24 25 26 27 28 5