“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).”
How later courts described this case
- “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).”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 CHARLES RAY CATHY, Case No.: 3:22-cv-01565-GPC-JLB
CDCR #V-39913,
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ORDER DENYING MOTION FOR
Plaintiff,
13 RECONSIDERATION AND
vs. GRANTING LEAVE TO FILE
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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;
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E. URIBE, Correctional Officer;
18 J. ANGULO, Correctional Sergeant;
ALVAREZ, Correctional Officer,
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Defendants.
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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.
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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
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1 The Court notes that new claims alleged in a supplemental pleading must be exhausted
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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).
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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
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