-GGH (TEMP)(PC) Penn v. McDonald et al, No. 2:2010cv02256 - Document 25 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 5/30/2011 RECOMMENDING that dfts McDonald, Woodford, Keating, Griffith, Barron and Wedemyer be dismissed from this case. Referred to Judge Frank C. Damrell, Jr.; Objections due w/in 21 days.(Yin, K)

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-GGH (TEMP)(PC) Penn v. McDonald et al Doc. 25 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARLIN PENN 11 12 13 14 15 16 Plaintiff, No. CIV S-10-2256 GGH (TEMP) P vs. McDONALD, et al. Defendants. FINDINGS & RECOMMENDATIONS / Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action 17 under 42 U.S.C. § 1983. By separate order filed concurrently herewith, the undersigned 18 performed its duty under 28 U.S.C. § 1915A to screen any complaint “in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity.” The court 20 found that plaintiff has stated a cognizable claim only against defendant Harper and ordered 21 plaintiff to provide the documents necessary to effect service on him. 22 As to the other named defendants, plaintiff has not provided sufficient factual 23 information to allege a plausible, specific link between them and any act that, if proven, would 24 subject them to liability under 42 U.S.C. § 1983. “A claim has facial plausibility when the 25 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 26 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 1 Dockets.Justia.com 1 To make a plausible claim, plaintiff must allege with at least some degree of particularity overt 2 acts which defendants engaged in that support plaintiff’s claim. Jones v. Community Redev. 3 Agency, 733 F.2d 646, 649 (9th Cir. 1984). Therefore the complaint must allege in specific 4 terms how each named defendant is involved. Furthermore, vague and conclusory allegations of 5 official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 6 F.2d 266, 268 (9th Cir. 1982). 7 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative 8 link or connection between an individual defendant’s actions and the claimed deprivation. Rizzo 9 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 10 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In his first amended complaint, plaintiff fails to make 11 that required link with respect to defendants McDonald, Woodford, Keating, Griffith, Barron and 12 Wedemyer. Therefore, those defendants should be dismissed. 13 14 Accordingly, IT IS RECOMMENDED that defendants McDonald, Woodford, Keating, Griffith, Barron and Wedemyer be dismissed from this case. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 17 one days 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.” Any reply to the objections 20 shall be served and filed within fourteen days after service of the objections. The parties are 21 advised that failure to file objections within the specified time may waive the right to appeal the 22 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: May 30, 2011 24 25 /s/ Gregory G. Hollows ___________________________________ GREGORY H. HOLLOWS UNITED STATES MAGISTRATE JUDGE GGH:hm penn2256.57 26 2

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