(PC) Jefferson v. Flohr, et al, No. 2:2008cv01747 - Document 28 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/25/2010 ORDERING that pltf's 21 motion to amend the cmplt is GRANTED; service is appropriate for dft Swanson; the clerk to send pltf forms for service to be completed and returned w/in 20 days along w/ the Notice of Submission; failure to comply will result in a recommendation that this action be dismissed as to dft Swanson; and RECOMMENDING that pltfs claim against dft Kramer be dismissed w/out leave to amend. Referred to Judge William B. Shubb; Objections to F&R due w/in 14 days.(Yin, K)

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(PC) Jefferson v. Flohr, et al Doc. 28 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DON L. JEFFERSON, 11 Plaintiff, 12 vs. 13 No. CIV S-08-1747 WBS EFB P L. FLOHR, 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. Plaintiff’s July 29, 2008 complaint names defendants Flohr, Harris, and Stoker. 18 Defendants filed an answer to the complaint on July 10, 2009. On October 16, 2009, plaintiff filed a motion to amend his complaint and submitted a 19 20 proposed first amended complaint naming two new defendants. On November 16, 2009, 21 defendants Flohr, Harris, and Stoker filed an answer to the amended complaint, which the court 22 construes as a statement of non-opposition to the motion to amend. Since the amended 23 complaint names two additional defendants, however, the court must screen the complaint to 24 determine whether, for the limited purposes of § 1915A, the complaint states a cognizable claim 25 against these newly named defendants. 26 //// 1 Dockets.Justia.com 1 The court finds that for the limited purposes of § 1915A screening, the amended 2 complaint states a cognizable Eight Amendment claim against defendant Swanson. See 28 3 U.S.C. § 1915A. The complaint does not state a cognizable claim against defendant Kramer. 4 To state a claim under 42 U.S.C. § 1983, plaintiff must allege an identified defendant 5 deprived plaintiff of a right secured to him by the Constitution or laws of the United States while 6 acting under color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988). 7 Plaintiff names defendant Kramer as a defendant solely because Kramer “is the warden at 8 Folsom State Prison and is responsible for its operation, overall.” Dckt. No. 22. Plaintiff may 9 not sue any supervisor, such as defendant Kramer, on a theory that the supervisor is liable for the 10 acts of his or her subordinates. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). A 11 supervisor may be held liable in his or her individual capacity “‘for his own culpable action or 12 inaction in the training, supervision or control of his subordinates.’” Watkins v. City of Oakland, 13 Cal., 145 F.3d 1087, 1093 (9th Cir. 1998) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 14 646 (9th Cir. 1991)). “A supervisor is only liable for constitutional violations of his subordinates 15 if the supervisor participated in or directed the violations, or knew of the violations and failed to 16 act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). This claim should be 17 dismissed without leave to amend. 18 Accordingly, the court hereby ORDERS that: 19 1. Plaintiff’s October 16, 2009 motion to amend is granted. 20 2. The allegations in the pleading are sufficient at least to state a cognizable Eighth 21 22 Amendment claim against defendant Swanson. See 28 U.S.C. § 1915A. 3. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a 23 copy of the pleading filed October 16, 2009, one USM-285 forms and instructions for service of 24 process on defendant Swanson. Within 20 days of service of this order plaintiff may return the 25 attached Notice of Submission of Documents with the completed summons, the completed 26 USM-285 forms, and two copies of the October 16, 2009 complaint. The court will transmit 2 1 them to the United States Marshal for service of process pursuant to Fed. R. Civ. P. 4. 2 Defendant Swanson will be required to respond to plaintiff’s allegations within the deadlines 3 stated in Fed. R. Civ. P. 12(a)(1). 4 5 6 7 4. Failure to comply with this order will result in a recommendation that this action be dismissed as to defendant Swanson. Further, it is hereby RECOMMENDED that, for the reasons stated above, plaintiff’s claim against defendant Kramer be dismissed without leave to amend. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 13 within the specified time may waive the right to appeal the District Court’s order. Turner v. 14 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: February 25, 2010. 16 17 18 19 20 21 22 23 24 25 26 3 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 DON L. JEFFERSON, 9 Plaintiff, 10 vs. 11 No. CIV S-08-1747 WBS EFB P L. FLOHR, et al., 12 Defendants. / 13 Plaintiff hereby submits the following documents in compliance with the court’s order 14 15 NOTICE OF SUBMISSION OF DOCUMENTS filed : 16 1 completed summons form 17 1 completed forms USM-285 18 2 copies of the October 16, 2009 Amended Complaint 19 Dated: 20 Plaintiff 21 22 23 24 25 26 4

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