REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, Magistrate Judge.
TO THE HONORABLE JOHN J. TUCHI:
Before the Court is Plaintiff's motion (ECF No. 121) for leave to amend and supplement his Second Amended Complaint. Plaintiff seeks leave to amend Count Five of his Second Amended Complaint and to supplement that complaint by adding a thirteenth claim for relief, citing Rule 15(c)(1)(B) and Rule 15(d) of the Federal Rules of Civil Procedure. Because a magistrate judge cannot decide a "matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement," Rule 72(b)(1), the undersigned recommends as follows.
I. Background
Plaintiff, proceeding pro se, filed a prisoner civil rights complaint in the Pinal County Superior Court on April 17, 2017. Defendant State of Arizona removed the matter to federal court on June 12, 2017. (ECF No. 1). Plaintiff filed a First Amended Complaint on July 18, 2017. (ECF No. 16). Plaintiff was ordered to amend that complaint on August 24, 2017, and he filed a Second Amended Complaint on November 1, 2017. (ECF No. 24). On March 20, 2018, the Court ordered Defendants Shy and Stitt to answer Counts One, Two, and Three; ordered Defendants Shy, Stitt, and Bendel to answer Count Four; ordered Defendants Chapman, Rojas, and Hawley to answer Count Five; ordered Defendants Shy, Stitt, Salyer, and Redmon to answer Count Six; ordered Defendants Corizon, Salyer, and Redmon to answer Counts Seven and Eight; and ordered Defendants State of Arizona and Arizona Department of Corrections to answer Count Nine. (ECF No. 28). The Court dismissed Counts Ten, Eleven, and Twelve and Defendants Ryan, Pratt, and Ibarra. (Id.). The Court issued a scheduling order requiring discovery be completed by September 18, 2018, and dispositive motions be filed by November 17, 2018. (ECF No. 53). The deadline for filing dispositive motions was extended to March 2, 2019, and then again until April 3, 2019. (ECF No. 123).
Defendant Arizona Department of Corrections filed a motion to dismiss all claims against it, which motion was granted on October 5, 2018. (ECF Nos. 38 & 93). Defendants Chapman and Rojas were dismissed for Plaintiff's failure to serve these defendants. (ECF No. 108). Defendants Shy and Stitt filed a motion, in which Defendants Redmon and Salyer joined, to dismiss Counts Two and Six; the motion was granted on January 31, 2019. (ECF Nos. 44 & 115). Accordingly, the remaining claims and Defendants in this action are Plaintiff's claims against Defendants Shy and Stitt in Counts One and Three; Defendants Shy, Stitt, and Bendel in Count Four; Defendant Hawley in Count Five; Defendants Corizon, Salyer, and Redmon in Counts Seven and Eight; and Defendant the State of Arizona in Count Nine. (ECF No. 83).
Plaintiff filed the pending motion on February 2, 2019, at which time the deadline for filing dispositive motions was March 2, 2019. Plaintiff seeks leave to amend Count Five of the Second Amended Complaint and to supplement the Second Amended Complaint with a Count Thirteen against two new defendants. (ECF No. 121). Plaintiff is not entitled to amend or supplement the Second Amended Complaint without leave of the Court. See Fed. R. Civ. P. 15(a)(1). Defendants oppose the motion to amend and supplement the Second Amended Complaint. (ECF No. 126).
II. Standard governing Rule 15 motions
Rule 15(a) of the Federal Rules of Civil Procedure provides a plaintiff should be given leave to amend his complaint when justice so requires. Granting or denying leave to amend is a matter committed to the Court's discretion. Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). In exercising this discretion with regard to a Rule 15 motion filed after a responsive pleading, the Court should considerthe prejudice to the opposing party, whether granting the motion will result in undue delay, and whether the plaintiff has previously amended his complaint. Western Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). Granting leave to amend causes substantial prejudice if it alters the litigation, creates additional discovery, or causes an extreme delay. See Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981) (affirming the district court's denial of a motion to amend when the amendment was "raised at the eleventh hour, after discovery was virtually complete and the Board's motion for summary judgment was pending before the court.").
A true amended complaint amends the original claims, whereas a supplemental complaint adds new claims. See Finfrock v. Jordan, 105 F.3d 660 (7th Cir. 1996). Federal Rule of Civil Procedure 15(d) allows a party to supplement his pleading to set forth transactions or events that have happened since the date of the original pleading. However, although Rule 15(a) explicitly requires that leave to amend be freely granted, no comparable admonition applies to motions to supplement under Rule 15(d). The Court has broad discretion to decide whether or not to allow a party to supplement his complaint. The Court may deny a motion to supplement on the grounds of undue delay, bad faith or dilatory motive on the part of the movant; undue prejudice to the opposing party; or if allowing the supplemental claim would be futile. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); Chodos v. West Publ'g Co., 292 F.3d 992, 1003 (9th Cir. 2002). As with a motion to amend, futility by itself can justify denial of a motion to supplement. See Bonin v. Calderon, 59 F.3d 815, 845-46 (9th Cir. 1995). Additionally, because the goal of Rule 15(d) is to promote judicial efficiency, a motion to supplement may be denied if granting the motion would, in effect, result in two separate actions within the same case. Planned Parenthood of So. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997). And, as with a motion to amend, a motion to supplement may be denied if not timely brought. Twin Disc, Inc. v. Big Bud Tractor, Inc., 772 F.2d 1329, 1338 (7th Cir. 1985).
III. Analysis
A. Motion to amend Count Five
In Count Five, Plaintiff claims Defendant Chapman retaliated against Plaintiff for filing a grievance and state court lawsuit against his employer (Defendant Corizon) and coworkers (Defendants Rojas and Hawley), in violation of Plaintiff's First Amendment rights. Plaintiff asserts that after his grievance appeal regarding Defendant Corizon's failure to properly treat his hip pain was granted, he was told to submit another health needs request form for treatment. He contends Defendant Chapman communicated with Defendants Rojas, Hawley, and "other Corizon Health Administrators" about "ways & means to limit the Plaintiff[`]s ability to meaningfully prosecute this lawsuit" and they agreed to do so by "causing excessive financial burdens on the Plaintiff." Plaintiff asserts that when he submitted another health needs request form for treatment, Defendant Chapman charged Plaintiff a second co-payment, stating that "no such records existed" and, therefore, Plaintiff would be charged the co-payment every time he submitted a health needs request form. He claims the actions of Defendants Chapman, Rojas, Hawley, and Corizon were malicious, did not reasonably advance a legitimate penologicial interest, and were intended to punish and harm him by making medical access unaffordable and forcing him to choose between pursuing his lawsuit or requesting medical services from Defendant Corizon.
(ECF No. 28 at 5-6).
Plaintiff seeks to amend Count Five to substitute the State of Arizona for the Arizona Department of Corrections ("ADC"). He seeks to bolster his claim that Defendant Corizon Health violated his rights by imposing a copay to discourage inmates from submitting Health Needs Requests for medical treatment by asserting the imposition of the copay was "under ADC authority." (ECF No. 122 at 12).
Pursuant to the Court's screening order and the order dismissing Defendants Chapman and Rojas, this count survives only against Defendant Hawley—not against Defendants Corizon Health or the State of Arizona. Plaintiff concedes his "new" allegation regarding copays is not intended to support a new cause of action or to expand the scope of his existing claim, but instead is offered to support his "theory of why the Defendants acted the way they did." (ECF No. 121 at 2). Discovery in this matter was completed when Plaintiff filed the motion to amend, and the current deadline for filing any additional dispositive motions is April 3, 2019. Allowing Plaintiff to amend his complaint at this time, which would arguably be futile, certainly serve no compelling purpose, prejudice the existing defendants, and potentially further delay these proceedings, is not in the interests of justice in this matter. See Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Accordingly, the Court should exercise its discretion and deny leave to amend. See Duggins v. Steak `N Shake, Inc., 195 F.3d 828, 834 (6th Cir.1999) (upholding denial of leave to amend based on undue delay and undue prejudice to the defendant where the plaintiff sought amendment after the close of discovery).
B. Motion to supplement
Plaintiff seeks to supplement his complaint to add a thirteenth cause of action. This claim is based on an incident occurring on January 8, 2019. Plaintiff claims that the incident shows the "`State Defendants' have shown a continued prejudice too [sic] and discrimination against inmates in the Browning Unit/STG Stepdown program with disabilities." (ECF No. 121 at 3). Plaintiff also seeks to add two additional defendants with regard to the thirteenth claim, Captain Silves and Deputy Warden Days ("as the official successor to Defendant [] Ibarra," who was dismissed as a defendant in the screening order. (ECF No. 121 at 4; ECF No. 122 at 2).
The main goal of Rule 15(d) is to promote judicial efficiency. Judicial efficiency would not be served by allowing Plaintiff to add a supplemental claim naming additional defendants at this late date. Adding new defendants would require postponing resolution of the other Defendants' liability while service is made on the additional defendants, and would require re-opening discovery. This delay would unfairly prejudice the existing Defendants. Additionally, allowing Plaintiff to supplement his Second Amended Complaint with an additional count for relief and additional defendants would, in effect, result in two separate actions within this case and would not promote judicial economy. See Planned Parenthood, 130 F.3d at 402. The goal of Rule 15(d) is to settle the entire controversy "between the parties" in a single action, id. (emphasis added), not to provide a means of introducing new parties against whom Plaintiff has a similar claim.
Furthermore, to the extent Plaintiff seeks to amend his complaint to add a cause of action arising from events occurring in January of 2019, it is high improbable that Plaintiff has exhausted his administrative remedies regarding this incident, a prerequisite to filing a 1983 claim. Leave to supplement, as with leave to amend, should not be granted when it would be futile. Garner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009). Allowing Plaintiff leave to serve a supplemental pleading alleging events occurring four months after the close of discovery, when Plaintiff has not administratively exhausted these allegations, would not be just.
IT IS THEREFORE RECOMMENDED that Plaintiff's motion at ECF No. 121, seeking leave to amend and supplement his Second Amended Complaint, be denied, and that the proposed amended complaint lodged at ECF No. 122 be stricken from the record.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
