(PC) Marland v. McDonald et al, No. 2:2009cv00307 - Document 13 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/04/10 recommending that this action be dismissed for plaintiff's failure to state a claim. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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(PC) Marland v. McDonald et al Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GREGORY LAMOND MARLAND, 11 Plaintiff, 12 No. CIV S-09-0307 JAM EFB P vs. 13 M.D. McDONALD, et al., 14 Defendants. FINDINGS AND RECOMMENDATIONS / 15 16 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action 17 brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 18 pursuant to 28 U.S.C. § 636(b)(1). On September 23, 2009, the court dismissed plaintiff’s 19 complaint with leave to amend. On November 6, 2009, plaintiff filed an amended complaint. 20 The court has reviewed plaintiff’s amended complaint pursuant to 28 U.S.C. § 1915A 21 and, for the reasons explained below, finds it fails to state a claim for relief. 22 In his original complaint, plaintiff alleged that defendant Wentz injured plaintiff’s right 23 shoulder by placing plaintiff in handcuffs behind his back for over three hours. Compl., Dckt. 24 No. 1, ¶ 4. The court dismissed this claim with leave to amend, because plaintiff’s allegations 25 did not suggest that defendant acted sadistically and maliciously for the very purpose of causing 26 harm. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In an attachment to his original 1 Dockets.Justia.com 1 complaint, plaintiff listed 83 individuals and entities as “defendants,” but did not include any 2 factual allegations linking any of the defendants to a deprivation of his federal rights. The court 3 advised plaintiff that if wished to proceed on claims against any of those defendants, he must 4 specifically identify each defendant and include factual allegations showing how each defendant 5 was personally involved in violating his federal rights. Dckt. No. 9 at 3. 6 Plaintiff has failed to cure the deficiencies identified by the court in its initial screening 7 order. In his amended complaint, plaintiff alleges that defendant Wentz placed plaintiff in 8 handcuffs “close to 4 hours,” which caused “injury to [his] right shoulder . . . .” Am. Compl., 9 Dckt. No. 12, ¶ IV. Once again, plaintiff has not alleged facts suggesting that defendant used the 10 handcuffs for the very purpose of causing harm, as opposed to a good faith effort to maintain or 11 restore discipline. See Meredith v. Arizona, 523 F.2d 481, 483 (9th Cir. 1975) (“[n]ot every push 12 or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a 13 prisoner’s constitutional rights.”). Plaintiff has also attached the same list of 83 defendants that 14 he attached to his original complaint. Again, plaintiff fails to link any of these defendants to a 15 deprivation of his federal rights. 16 Accordingly, it is hereby RECOMMENDED that this action be dismissed for plaintiff’s 17 failure to state a claim. See 28 U.S.C. § 1915A; see also Lopez v. Smith, 203 F.3d 1122, 1128 18 (9th Cir. 2000) (indigent prisoner proceeding without counsel must be given leave to file 19 amended complaint unless the court can rule out any possibility that the plaintiff could state a 20 claim). 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 26 //// 2 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: February 4, 2010. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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