United States District Court, M.D. Pennsylvania
the Court is pro se Plaintiff Kareem Millhouse
(“Plaintiff”)'s motion to file a supplemental
complaint. (Doc. No. 24.) Despite receiving an extension of
time to do so (Doc. Nos. 25, 26), Defendants have not filed a
brief opposing the motion to file a supplemental complaint.
Accordingly, the motion is ripe for resolution.
is currently incarcerated at the Federal Correctional Complex
in Coleman, Florida (“FCC Coleman”). He initiated
the above-captioned action on April 18, 2019, by filing a
complaint pursuant to the Federal Tort Claims Act
(“FTCA”) and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), raising claims alleging that he received inadequate
medical care while incarcerated at the United States
Penitentiary in Lewisburg, Pennsylvania (“USP
Lewisburg”). (Doc. No. 1.) Specifically, Plaintiff
alleges that in 2017 and 2018: (1) he never received
follow-up care after he underwent a lumbar laminectomy; (2)
Defendants failed to evaluate him for medical shoes; and (3)
Defendants failed to provide adequate pain medication.
Order dated May 17, 2019, the Court granted Plaintiff leave
to proceed in forma pauperis and directed service of
his complaint upon Defendants. (Doc. No. 6.) On July 8, 2019,
the United States of America filed a motion for an extension
of time to respond to Plaintiff's complaint. (Doc. No.
10.) In its motion, the United States of America indicated
that on July 1, 2019, it mailed to Plaintiff a Notice of
Intention to Move for Dismissal of Medical Negligence Claims
for Failure to File a Certificate of Merit, which must be
provided thirty (30) days “prior to the time that the
defendant takes any action in pursuit of dismissal.”
(Id. at 2-3.) In an Order entered that same day, the
Court granted the motion and directed the United States of
America to answer or otherwise respond to the complaint on or
before August 15, 2019. (Doc. No. 11.)
subsequently filed a motion to appoint counsel for the
limited purpose of obtaining a certificate of merit (Doc. No.
13) and a motion for an extension of time to file a
certificate of merit (Doc. No. 14). On August 12, 2019, the
United States, joined by Defendants Edinger and Ayers, filed
a second motion for an extension of time to respond to
Plaintiff's complaint. (Doc. No. 17.) In an Order dated
August 15, 2019, the Court denied Plaintiff's motion to
appoint counsel without prejudice and granted his motion for
an extension of time to the extent that it directed Plaintiff
to file any certificate of merit within sixty (60) days.
(Doc. No. 18.) The Court also granted the second motion for
an extension of time filed by the United States and
Defendants Edinger and Ayers and directed them to answer or
otherwise respond to Plaintiff's complaint within ninety
(90) days of August 15, 2019 or fourteen (14) days of the
date that Plaintiff filed a certificate of merit, whichever
was earlier. (Id.)
subsequently filed a motion for reconsideration of the denial
of his motion to appoint counsel. (Doc. No. 19.) Defendants
filed a brief in opposition on September 12, 2019. (Doc. No.
22.) In an Order dated September 12, 2019, the Court granted
Plaintiff's motion for reconsideration, vacated its
August 15, 2019 Order to the extent that it denied
Plaintiff's motion to appoint counsel, and conditionally
granted his motion to appoint counsel. (Doc. No. 23.) The
Court referred this matter to Michael A. O'Donnell, Esq.,
Chair of the Federal Bar Association's Pro Bono
Committee, for the purpose of obtaining counsel for Plaintiff
and stayed all filing obligations and other deadlines for
forty-five (45) days. (Id.) The Court cautioned
Plaintiff that if the Court was unable to locate counsel to
represent him, he would be required to proceed with his case
pro se. (Id.)
September 25, 2019, Plaintiff filed his motion to file a
supplemental complaint and brief in support thereof. (Doc.
No. 24.) Plaintiff seeks leave to supplement his complaint to
add a negligence claim against the United States of America.
(Doc. No. 24-1 at 2.) Plaintiff alleges that on February 1
and March 6, 2019, he fell from his assigned upper bunk.
(Id. at 1.) On the first occasion, he hurt his left
knee, and he broke his right hand as a result of the second
fall. (Id.) Plaintiff was subsequently seen by the
medical department, which provided him a splint for his hand
and diagnosed him with muscle atrophy in his right leg.
(Id.) Plaintiff maintains that during the relevant
time, he had “a valid lower bunk pass but [was]
assigned upper bunks.” (Id.) Plaintiff alleges
that staff members at USP Lewisburg were negligent when they
assigned him to an upper bunk without “read[ing] the
lower bunk authorization posted outside [his] cell door and
in ‘SENTRY.'” (Id. at 2.) As noted
above, despite receiving an extension of time to do so (Doc.
Nos. 25, 26), Defendants have not filed a brief opposing
Plaintiff's motion to file a supplemental complaint.
Moreover, the Court's forty-five (45) day stay of this
matter has now elapsed, and Attorney O'Donnell has
notified the Court that he has been unsuccessful in locating
counsel to assist Plaintiff in obtaining and filing a
certificate of merit.
seeks leave to file a supplemental complaint pursuant to Rule
15(d) of the Federal Rules of Civil Procedure, which
On motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.
The court may permit supplementation even though the original
pleading is defective in stating a claim or defense. The
court may order that the opposing party plead to the
supplemental pleading within a specified time.
Fed. R. Civ. P. 15(d). A supplemental complaint “refers
to events that occurred after the original pleading was
filed.” See Owens-Illinois, Inc. v. Lake Shore Land
Co., 610 F.2d 1185, 1188-89 (3d Cir. 1979).
“Factors to be considered by the Court in making [a
determination under Rule 15(d)] are the same as those to be
considered in motions to amend, including the promotion of a
justiciable disposition of the case, the delay or
inconvenience in permitting a plaintiff to supplement the
complaint, any resulting prejudice to the other parties in
the action, and whether the supplement would be
futile.” Green v. Klinefetter, No.
3:16-cv-2367, 2019 WL 80443, at *3 (M.D. Pa. Jan. 2, 2019)
(citations omitted). However, “when the matters alleged
in a supplemental pleading have no relation to the claim set
forth and joinder will not promote judicial economy or the
speedy disposition of the dispute between the parties,
refusal to allow the supplemental pleading is entirely
justified.” Wright & Miller, Federal Practice
and Procedure: Civil § 1506 at 551 (1971).
suggests that he should be allowed to supplement his
complaint to include his negligence claim regarding bottom
bunk status because he had not yet exhausted his
administrative remedies for this claim prior to filing his
complaint on April 18, 2019. (Doc. No. 24 at 2.) However,
after consideration of the claims raised by Plaintiff in his
initial complaint and that which he seeks to raise in his
supplemental pleading, the Court concludes that the proposed
claim bears no relation to the claims set forth in the
original complaint and that joinder of such will not promote
judicial economy or the speedy disposition of the dispute.
Plaintiff's negligence claim concerning bottom bunk
status concerns events that occurred several months after the
events alleged in the original complaint and is wholly
unrelated to the claims regarding inadequate medical care
raised in the original complaint. While the Court concludes
that Plaintiff should not be permitted to file his
supplemental pleading in the above-captioned matter,
Plaintiff is free to raise his negligence claim concerning
bottom bunk status in a separate civil action should he
choose to do so.