(PC) Jones v. Betti et al, No. 2:2008cv00096 - Document 88 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 07/20/10 and USM-285 Forms. Service is appropriate for L Betti, M. Brautingham, Callison, Cunningham, T. Felker, - Hunter, - Lebeck. Clerk to send plaintiff: 1 S ummons, 1 USM-285 Forms, and 1 copy of the Amended Complaint filed on 03/29/10 for service on defendant Felker to be completed and returned within 30 days. Also, RECOMMENDING that the due process claims against defendants Betti, Brautingham, Cunningham, Hunter, Callison, Lebeck and Felker be dismissed without leave to amend. Referred to Judge Frank C. Damrell. Objections due within 21 days. (Plummer, M)

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(PC) Jones v. Betti et al Doc. 88 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MALIK JONES, No. CIV S-08-0096 FCD EFB P Plaintiff, 11 12 vs. 13 T. FELKER, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 14 / 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. Pursuant to this court’s orders dated February 12, 2010 (Dckt. No. 79, granting 18 plaintiff leave to amend the complaint) and March 17, 2010 (Dckt. No. 81, granting in part 19 defendants’ motions to dismiss), plaintiff filed a First Amended Complaint on March 29, 2010. 20 The court has reviewed the amended complaint and, for the limited purposes of § 1915A 21 screening, finds that it states the following cognizable claims: (1) 22 Against defendants Betti, Brautingham, Cunningham, and Hunter for the use of 23 excessive force against plaintiff in his cell on September 13, 2007 in violation of 24 the 8th Amendment and the 14th Amendment (equal protection). Am. Compl. 25 (Dckt. No. 82) at ¶¶ 12-17, 23-25. 26 //// 1 Dockets.Justia.com 1 (2) Against defendant Callison for interfering with plaintiff’s medical treatment in 2 violation of the 8th Amendment and the 14th Amendment (equal protection). 3 Am. Compl. (Dckt. No. 82) at ¶¶ 19, 26. 4 (3) Against defendant Lebeck for using excessive force in the course of transporting 5 plaintiff to the Correctional Training Center in violation of the 8th Amendment 6 and the 14th Amendment (equal protection). Am. Compl. (Dckt. No. 82) at 7 ¶¶ 20-21, 27. 8 9 10 11 (4) Against defendant Felker for deliberately disregarding the above-alleged conduct despite knowledge of it in violation of the 8th Amendment and 14th Amendment (equal protection). The complaint does not state cognizable claims against defendants Betti, Brautingham, 12 Cunningham, Hunter, Callison, Lebeck, or Felker for violating due process. The court has 13 previously ordered plaintiff’s due process claim against defendant Callison dismissed. Order 14 filed March 17, 2010 (Dckt. No. 81). The due process claims against the remaining defendants 15 are defective for the same reason – plaintiff’s allegations fall within the more specific guarantees 16 of the 8th Amendment and the Equal Protection Clause of the 14th Amendment, and thus must 17 be analyzed under those principles rather than the more generalized guarantee of substantive due 18 process. Albright v. Oliver, 510 U.S. 266, 273 (1994) (Rehnquist, C.J., for plurality) (quoting 19 Graham v. Connor, 490 U.S. 386, 395 (1989)); Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 20 1996). As the facts alleged do not give rise to a claim separately analyzable under substantive 21 due process principles, leave to amend to state a substantive due process claim would be futile 22 and should therefore not be granted. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 23 (9th Cir. 2000). 24 For the foregoing reasons, it is ORDERED that: 25 1. Service is appropriate for defendants Betti, Brautingham, Cunningham, Hunter, 26 Lebeck, Callison, and Felker. 2 1 2. With this order, the Clerk of the Court shall provide to plaintiff a blank summons, a 2 copy of the Amended Complaint filed March 29, 2010, one USM-285 form and instructions for 3 service of process on defendant Felker, who has not yet appeared in this action. 4 3. Within 30 days of service of this order, plaintiff shall return the attached Notice of 5 Submission of Documents with the completed summons, the completed USM-285 form, and two 6 copies of the March 29, 2010 Amended Complaint. 7 4. Upon receipt of the necessary materials, the court will direct the United States 8 Marshal to serve defendant Felker pursuant to Federal Rule of Civil Procedure 4 without 9 payment of costs. 10 11 5. Failure to comply with this order will result in a recommendation that this action be dismissed. 12 13 6. Defendants shall reply to the complaint within the time provided in Fed. R. Civ. P. 12(a). 14 It is further RECOMMENDED that the due process claims against defendants Betti, 15 Brautingham, Cunningham, Hunter, Callison, Lebeck, and Felker be dismissed without leave to 16 amend. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 19 days after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 within the specified time may waive the right to appeal the District Court’s order. Turner v. 23 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: July 20, 2010. 25 26 3 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., Defendants. 14 / 15 Plaintiff hereby submits the following documents in compliance with the court’s order 16 17 NOTICE OF SUBMISSION OF DOCUMENTS : filed 18 1 completed summons form 19 1 completed forms USM-285 20 2 copies of the March 29, 2010 Amended Complaint 21 Dated: 22 Plaintiff 23 24 25 26 4

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