(PC) Petillo v. Jasso ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH J. PETILLO, Case No. 1:19-cv-00908-LJO-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL 13 v. COMPLAINT AND SECOND MOTION FOR RECONSIDERATION 14 REYNALDO JASSO, et al., (ECF No. 13) 15 Defendants. TWENTY-ONE (21) DAY DEADLINE 16 17 I. Introduction 18 Plaintiff Isaiah J. Petillo is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 On July 3, 2019, Plaintiff filed a complaint and an application to proceed in forma 21 pauperis. (ECF Nos. 1, 2.) 22 On July 8, 2019, the assigned Magistrate Judge issued findings and recommendations that 23 Plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g) 24 and that Plaintiff be required to pay the $400.00 filing fee in full in order to proceed with this 25 action. (ECF No. 5.) The findings and recommendations were served on Plaintiff and contained 26 notice that any objections thereto were to be filed within thirty (30) days after service of the 27 findings and recommendations. (Id.) 28 Also, on July 8, 2019, Plaintiff filed a second application to proceed in forma pauperis. 1 (ECF No. 6.) 2 On September 13, 2019, after Plaintiff failed to file objections to the findings and 3 recommendations, the undersigned issued an order adopting the July 8, 2019 findings and 4 recommendations in full and denied both of Plaintiff’s applications to proceed in forma pauperis 5 pursuant to 28 U.S.C. § 1915(g). (ECF No. 8.) The undersigned ordered Plaintiff to pay the 6 $400.00 filing fee in full within twenty-one days from the date of service of the order. (Id.) 7 On September 30, 2019, Plaintiff filed a motion for a 30-day extension of time to pay the 8 filing fee. (ECF No. 9.) On October 1, 2019, the Magistrate Judge granted Plaintiff an additional 9 30 days to pay the $400.00 filing fee in full. (ECF No. 10.) Therefore, Plaintiff was required to 10 pay the $400.00 filing fee in full on or before November 4, 2019. 11 However, on October 28, 2019, Plaintiff filed a third application to proceed in forma 12 pauperis. (ECF No. 11.) 13 On November 14, 2019, the Court denied Plaintiff’s third application to proceed in forma 14 pauperis, construed as a motion for reconsideration. (ECF No. 12.) The Court also granted 15 Plaintiff an additional twenty-one (21) days from the date of the service of the order to pay the 16 $400.00 filing fee in full. (Id. at 5.) 17 On December 6, 2019, Plaintiff filed a document captioned: “Plaintiff alleges “Ongoing 18 danger,” Imminent Danger of Serious Physical Injury – Seeks to Add Additional Defs to Compl. 19 § 1915(g).” (ECF No. 13.) In his filing, Plaintiff asserts that he is in imminent danger of serious 20 physical harm due to events that occurred between him and six Correctional Officers on 21 November 24 and 25, 2019 and that he wants to amend his complaint to include multiple new 22 claims against eight new defendants. Hence, the Court construes Plaintiff’s filing as a motion for 23 leave to file a supplemental complaint and a second motion for reconsideration of the Court’s 24 September 13, 2019 order adopting the July 8, 2019 findings and recommendations, denying 25 Plaintiff’s applications to proceed in forma pauperis, and ordering Plaintiff to pay the $400.00 26 filing fee in full in order to proceed with this action. 27 II. Motion for Leave to File a Supplemental Complaint 28 Plaintiff states in his December 6, 2019 filing that he seeks to amend his complaint to 1 include multiple new claims against eight new defendants. However, since all the events at issue 2 in the new claims against the new defendants occurred after Plaintiff’s complaint was filed, it is 3 clear that Plaintiff is actually seeking leave to file a supplemental complaint, not to amend his 4 original complaint. Fed. R. Civ. P. 15(d). 5 Under Federal Rule of Civil Procedure 15(d), a court “may, on just terms, permit a party 6 to serve a supplemental pleading setting out any transaction, occurrence, or event that happened 7 after the date of the pleading to be supplemented.” The bringing of new claims in a supplemental 8 pleading should be allowed when it promotes the economical and speedy disposition of a 9 controversy. Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988). However, although leave to 10 permit supplemental pleading is generally favored, supplemental pleading “cannot be used to 11 introduce a ‘separate, distinct and new cause of action.’” Planned Parenthood of S. Arizona v. 12 Neely, 130 F.3d 400, 402 (9th Cir. 1997) (citation omitted). Additionally, in this case, since 13 Plaintiff wishes to join new parties to this action, Plaintiff must satisfy the transactional test of 14 Federal Rule of Civil Procedure 20. Singleton v. Kernan, No. 3:16-cv-2462-BAS-NLS, 2017 WL 15 4021536, at *3 (S.D. Cal. Sept. 12, 2017). Rule 20 permits multiple parties to be joined as 16 defendants in a single action only if the claims asserted against them “arise out of the same 17 transaction, occurrence, or series of transactions or occurrences” and “any question of fact or law 18 common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). 19 Plaintiff’s original complaint contains claims arising out of his allegations that, on July 18, 20 2018, Defendants Ochoa and Jasso used excessive force on him and that, on July 27, 2018, 21 Defendant Ochoa threatened to assault him. (ECF No. 1.) In his current filing, Plaintiff states 22 that he seeks to add eight new defendants to this action, including Captain Hernandez, 23 Correctional Officer Castillo, Correctional Officer E. Castellanos, Correctional Officer J. Duran, 24 Correctional Officer Riley, Correctional Officer E. Diaz, Correctional Officer R. Figueroa, and 25 Correctional Officer Martinez. Further, Plaintiff asserts that he wants to “amend” his complaint 26 to include claims arising out of his allegations that: (1) in October 2019, he was placed into 27 administrative segregation for retaliatory reasons; (2) that Captain Hernandez and Correctional 28 Officer Castillo disseminated allegations to the inmate population in order to attempt to have 1 inmates inflict harm and pain on Plaintiff; (3) that, on November 24, 2019, Correctional Officers 2 Diaz, Duran, Castellanos, Riley, Figueroa, and Martinez assaulted and battered Plaintiff in 3 Plaintiff’s cell; and (4) that, on November 25, 2019, Correctional Officer Castellanos threatened 4 to make a sexual rape allegation against Plaintiff if Plaintiff reported the use of force incident that 5 had occurred on November 24, 2019. 6 However, while Plaintiff asserts that the incidents with the eight proposed defendants 7 occurred as ongoing retaliation for filing this action against Defendants Jasso and Ochoa, the 8 incidents with the eight proposed defendants do not arise out of the same transaction, occurrence, 9 or series of transactions or occurrences as the claims against Defendants Jasso and Ochoa. 10 Further, the incidents with the eight proposed defendants do not involve any common questions 11 of law and fact. Therefore, Plaintiff’s new claims against the eight proposed defendants are new, 12 separate, and unrelated to the claims directed against Defendants Ochoa and Jasso in Plaintiff’s 13 complaint. 14 Consequently, since supplemental pleading “cannot be used to introduce a ‘separate, 15 distinct and new cause of action[,]’” Neely, 130 F.3d at 402, and “unrelated claims that involve 16 different defendants must be brought in separate lawsuits[,]” Plaintiff’s motion for leave to file a 17 supplemental complaint is denied. Reed v. Hinshaw, No. 1:11-cv-00340-AWI-SAB (PC), 2013 18 WL 3198611, at *2 (E.D. Cal. Jun. 21, 2013) (citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 19 2007)). 20 III. Motion for Reconsideration 21 Federal Rule of Civil Procedure 60(b)(6) permits the Court to relieve a party from an 22 order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable 23 remedy to prevent manifest injustice and is to be utilized only where extraordinary 24 circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotation 25 marks and citation omitted). “A party moving for relief under Rule 60(b)(6) must demonstrate 26 both injury and circumstances beyond [their] control[.]” Id. (internal quotation marks and 27 citation omitted). Additionally, Local Rule 230(j) requires that, when a party makes a motion for 28 reconsideration, the party must show “what new or different facts or circumstances are claimed to 1 exist or were not shown upon such prior motion, or what other grounds exist for the motion” and 2 “why the facts and circumstances were not shown at the time of the prior motion.” 3 “A motion for reconsideration should not be granted, absent highly unusual 4 circumstances, unless the district court is presented with newly discovered evidence, committed 5 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 6 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks 7 and citation omitted). Therefore, “[a] party seeking reconsideration must show more than a 8 disagreement with the Court’s decision, and recapitulation of the cases and arguments considered 9 by the [C]ourt before rendering its original decision fails to carry the moving party’s burden.” 10 United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (internal 11 quotation marks and citation omitted). 12 Here, Plaintiff disputes the Court’s findings that he does not meet the imminent danger 13 exception to the three strikes rule. 28 U.S.C. § 1915(g). Specifically, Plaintiff argues that he is in 14 ongoing imminent danger of serious physical harm because, on November 24, 2019, six non- 15 party Kern Valley State Prison correctional officers assaulted and battered Plaintiff in Plaintiff’s 16 cell and, on November 25, 2019, one of the six non-party correctional officers threatened to make 17 a sexual rape allegation against Plaintiff if Plaintiff reported the use of force incident that had 18 occurred the day before. 19 However, “the availability of the [imminent danger] exception turns on the conditions a 20 prisoner faced at the time the complaint was filed, not at some earlier or later time.” Andrews v. 21 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Therefore, Plaintiff’s allegations about events 22 that occurred in November 2019 fail to demonstrate that Plaintiff was in imminent danger of 23 serious physical injury when his complaint was filed with the Court on July 3, 2019. (ECF No. 24 1.) 25 Consequently, Plaintiff’s second motion for reconsideration is denied. 26 While Plaintiff’s second motion for reconsideration was pending, the time allotted for 27 Plaintiff to pay the $400.00 filing fee in full expired. Therefore, the Court finds that the interest 28 of justice requires that Plaintiff be granted an additional twenty-one (21) days from the date of 1 service of this order to pay the $400.00 filing fee in full in order to proceed with this action. 2 IV. Order 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. Plaintiff’s motion for leave to file a supplemental complaint and second motion for 5 reconsideration, (ECF No. 13), is DENIED; 6 2. In the interest of justice, Plaintiff is granted an additional twenty-one (21) days 7 from the date of service of this order to pay the $400.00 filing fee in full in order to 8 proceed with this action; 9 3. No further extensions of the time to pay the $400.00 filing fee in full will be 10 granted; and 11 4. Plaintiff is warned that if he fails to pay the filing fee within the specified time, 12 this action will be dismissed. 13 IT IS SO ORDERED. 14 15 Dated: December 19, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28