(PC) Jones v. Betti et al, No. 2:2008cv00096 - Document 89 (E.D. Cal. 2010)
Court Description: AMENDED ORDER DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms signed by Magistrate Judge Edmund F. Brennan on 7/21/2010. Service is appropriate for T. Felker. Clerk to send plaintiff: 1 Summons, 1 USM-285 Form, and 1 copy of the A mended Complaint filed on 3/29/2010. Plaintiff shall complete and return the forms w/i 30 days of service of this order. Defendants Betti, Brautingham, Cunningham, Hunter, Lebeck, and Callison shall respond to the complaint w/i 21 days of the service of this order. Defendant Felker shall respond to the complaint w/i the time provided in FRCP 12(a). FINDINGS and RECOMMENDATIONS recommending that 83 MOTION for judgment by default filed by Malik Jones be denied; and that plaintiff's due proc ess claims against defendants Betti, Brautinham, Cunningham, Hunter, Callison, Lebeck, and Felker be dismissed without leave to amend. Matter referred to Judge Frank C. Damrell, Jr. Objections to F&R due within 14 days from date of service of the findings and recommendations. (Waggoner, D)
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(PC) Jones v. Betti et al Doc. 89 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MALIK JONES, Plaintiff, 11 12 vs. 13 No. CIV S-08-0096 FCD EFB P T. FELKER, et al., 14 / 15 16 AMENDED ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. Currently before the court are plaintiff’s March 29, 2010 First Amended 18 Complaint and June 7, 2010 “Motion for Judgment by Default.” Dckt. Nos. 82 & 83. 19 I. Motion for Entry of Default Judgment 20 Plaintiff asks the Court to enter default judgment against all defendants, contending that 21 they were served with the First Amended Complaint on March 14, 2010 and have not filed an 22 answer despite the court’s order that defendants respond to the amended complaint within 30 23 days of its service. Dckt. No. 79, Order of Feb. 12, 2010. Defendants Betti, Brautingham, 24 Cunningham, Hunter, Lebeck, and Callison (collectively, the “served defendants”) argue that, 25 because the court has not screened the First Amended Complaint, they are not required to file a 26 response despite the court’s order. 1 Dockets.Justia.com 1 The Court has reviewed the docket for the action, which reveals that the court screened 2 plaintiff’s initial complaint on September 5, 2008, finding that plaintiff had stated cognizable 3 claims against the served defendants. Dckt. No. 12. The court ordered the served defendants to 4 respond to the complaint as provided by Federal Rule of Civil Procedure 12(a)(1). The served 5 defendants responded with motions to dismiss on August 10, 2009 and October 23, 2009. Dckt. 6 Nos. 58 & 72. In its order of February 12, 2010, the court granted the motions in part and denied 7 them in part, dismissing certain of plaintiff’s claims against the served defendants and allowing 8 others to proceed. Dckt. No. 79. In the same order, the court granted plaintiff’s request for leave 9 to file an amended complaint to “add new facts and reflect just the incidents involving the ‘6’ 10 (six) defendants and defendant T. Felker, whom the Court granted and ordered process of service 11 on, in this case.” The court ordered the served defendants to respond to the amended complaint 12 within 30 days of its service. Plaintiff filed the first amended complaint on March 29, 2010. As 13 of the date of this order, defendant Felker has not yet been served and the served defendants have 14 not filed a response to the amended complaint. 15 The served defendants contend that they are not required to respond to the amended 16 complaint at this time, citing 42 U.S.C. § 1997e(g). However, that statute expressly provides 17 that a court may require a defendant to respond to a prisoner civil rights complaint if the court 18 finds that the plaintiff has a reasonable opportunity to prevail on the merits. In determining that 19 plaintiff had stated cognizable claims against the served defendants, declining the served 20 defendants’ requests to dismiss many of those claims, and ordering the served defendants to file 21 a response to the amended complaint within 30 days of its service, the court required a response 22 from the served defendants under § 1997e(g). 23 Under Federal Rule of Civil Procedure 55(a), the court must enter default judgment 24 against a party who has “failed to plead or otherwise defend.” In this case, the served defendants 25 have defended through their motions to dismiss and opposition to the instant motion for default 26 judgment. While the court is displeased that the served defendants failed to comply with its 2 1 order of February 12, 2010 by failing to respond to the remaining claims against them within 30 2 days of service of the amended complaint as ordered, justice would not be served by entry of 3 default based merely on that failure to comply in light of the served defendants’ active defense of 4 the action in other instances. Nor may default judgment be entered against defendant Felker, 5 who, as of the date of plaintiff’s motion, had not been served with any pleading. Defendants are 6 admonished, however, that failure to respond to the amended complaint as provided in this order 7 may result in sanctions. See E.D. Cal. R. 110. 8 II. Screening Order – First Amended Complaint 9 Pursuant to this court’s orders dated February 12, 2010 (Dckt. No. 79, granting plaintiff 10 leave to amend the complaint) and March 17, 2010 (Dckt. No. 81, granting in part defendants’ 11 motions to dismiss), plaintiff filed a First Amended Complaint on March 29, 2010. The court 12 has reviewed the amended complaint and, for the limited purposes of § 1915A screening, finds 13 that it states the following cognizable claims: 14 (1) Against defendants Betti, Brautingham, Cunningham, and Hunter for the use of 15 excessive force against plaintiff in his cell on September 13, 2007 in violation of 16 the 8th Amendment and the 14th Amendment (equal protection). Am. Compl. 17 (Dckt. No. 82) at ¶¶ 12-17, 23-25. 18 (2) Against defendant Callison for interfering with plaintiff’s medical treatment in 19 violation of the 8th Amendment and the 14th Amendment (equal protection). 20 Am. Compl. (Dckt. No. 82) at ¶¶ 19, 26. 21 (3) Against defendant Lebeck for using excessive force in the course of transporting 22 plaintiff to the Correctional Training Center in violation of the 8th Amendment 23 and the 14th Amendment (equal protection). Am. Compl. (Dckt. No. 82) at ¶¶ 24 20-21, 27. 25 //// 26 //// 3 1 (4) Against defendant Felker for deliberately disregarding the above-alleged conduct 2 despite knowledge of it in violation of the 8th Amendment and 14th Amendment 3 (equal protection). 4 The complaint does not state cognizable claims against defendants Betti, Brautingham, 5 Cunningham, Hunter, Callison, Lebeck, or Felker for violating due process. The court has 6 previously ordered plaintiff’s due process claim against defendant Callison dismissed. Dckt. No. 7 81, Order of March 17, 2010. The due process claims against the remaining defendants are 8 defective for the same reason – plaintiff’s allegations fall within the more specific guarantees of 9 the 8th Amendment and the Equal Protection Clause of the 14th Amendment, and thus must be 10 analyzed under those principles rather than the more generalized guarantee of substantive due 11 process. Albright v. Oliver, 510 U.S. 266, 273 (1994) (Rehnquist, C.J., for plurality) (quoting 12 Graham v. Connor, 490 U.S. 386, 395 (1989)); Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 13 1996). As the facts alleged do not give rise to a claim separately analyzable under substantive 14 due process principles, leave to amend to state a substantive due process claim would be futile 15 and should therefore not be granted. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 16 (9th Cir. 2000). 17 III. Order and Findings and Recommendations 18 Accordingly, it is hereby ORDERED that: 19 1. Service is appropriate for defendant Felker. 20 2. With this order, the Clerk of the Court shall provide to plaintiff a blank summons, a 21 copy of the Amended Complaint filed March 29, 2010, one USM-285 form and instructions for 22 service of process on defendant Felker, who has not yet appeared in this action. 23 3. Within 30 days of service of this order, plaintiff shall return the attached Notice of 24 Submission of Documents with the completed summons, the completed USM-285 form, and two 25 copies of the March 29, 2010 Amended Complaint. 26 //// 4 1 4. Upon receipt of the necessary materials, the court will direct the United States 2 Marshal to serve defendant Felker pursuant to Federal Rule of Civil Procedure 4 without 3 payment of costs. 4 5 6 7 8 9 5. Plaintiff’s failure to comply with this order will result in a recommendation that this action be dismissed. 6. Defendants Betti, Brautingham, Cunningham, Hunter, Lebeck, and Callison shall respond to the complaint within 21 days of the service of this order. 7. Defendant Felker shall respond to the complaint within the time provided in Fed. R. Civ. P. 12(a). 10 Further, it is hereby RECOMMENDED that: 11 1. Plaintiff’s June 10, 2010 “Motion for Judgment by Default” (Docket No. 83) be 12 13 14 denied; and 2. Plaintiff’s due process claims against defendants Betti, Brautingham, Cunningham, Hunter, Callison, Lebeck, and Felker be dismissed without leave to amend. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 20 within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 Dated: July 21, 2010. 23 24 25 26 5 1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 MALIK JONES, 13 Plaintiff, No. CIV S-08-0096 FCD EFB P 14 vs. 15 T. FELKER, et al., 16 Defendants. NOTICE OF SUBMISSION OF DOCUMENTS 17 / 18 Plaintiff hereby submits the following documents in compliance with the court’s order 19 filed : 20 1 completed summons form 1 completed forms USM-285 2 copies of the March 29, 2010 Amended Complaint 21 22 23 24 Dated: 25 Plaintiff 26 6
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