(PC) Stine v. Bureau of Prisons et al, No. 2:2018cv00684 - Document 20 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/21/2018 DIRECTING Clerk of Court to assign a district judge to this case; DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms; and RECOMMENDING that defendant Revell be dismissed from this action without prejudice. Service is appropriate for Inch and Mitchell. Clerk to send plaintiff: 1 Summons, 2 USM-285 Forms with instruction sheet, and 1 copy of the Amended Complaint filed on 6/18 /2018. Plaintiff to complete and submit the Notice of Submission of Documents with service documents within 30 days from the date of this order. Assigned and referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(PC) Stine v. Bureau of Prisons et al Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIKEAL GLENN STINE, 12 Plaintiff, 13 14 v. No. 2:18-cv-0684 KJN P ORDER AND FINDINGS AND RECOMMENDATIONS BUREAU OF PRISONS, et al., 15 Defendants. 16 17 Plaintiff is a federal prisoner, proceeding pro se. Plaintiff filed a civil rights action under 18 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), 19 and is proceeding in forma pauperis. By order filed June 7, 2018, plaintiff’s amended complaint 20 was dismissed with leave to file a second amended complaint. Plaintiff has now filed a second 21 amended complaint. Plaintiff alleges his due process rights were violated when defendants wrongfully 22 23 validated him as a gang member because he “pissed off the regional director and director” by 24 filing lawsuits. (ECF No. 1 at 4.) He alleges that John Doe, an unknown individual with the 25 SIU/Sacramento office, wrongfully validated plaintiff as an Aryan Brotherhood gang member 26 without notice or a hearing in violation of plaintiff’s due process rights, and defendants Mitchell 27 and Inch reviewed and approved the validation. Plaintiff’s allegations state potentially cognizable 28 //// 1 Dockets.Justia.com 1 due process claims as to defendants John Doe, Mitchell, and Inch based on their alleged 2 involvement in the validation process. 3 Of course, unknown persons cannot be served with process until they are identified by 4 their real names and the court will not investigate the names and identities of unnamed 5 defendants. Once plaintiff learn the identity of the “John Doe” he wishes to serve, he must 6 promptly move to substitute and name the correct defendant, or move pursuant to Rule 15 to file 7 an amended pleading to add the proper defendant. See Brass v. County of Los Angeles, 328 F.3d 8 1192, 1197-98 (9th Cir. 2003) (affirming dismissal of Doe defendants where Brass did not even 9 attempt to request leave to add new parties or amend the complaint). 10 Further, plaintiff alleges that defendant Revell agreed with the decision to validate 11 plaintiff, but alleges no facts connecting defendant Revell with the validation process, by 12 initiating, reviewing, or approving it. Liability under Bivens requires a showing of personal 13 involvement. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (in a Bivens action, “each 14 Government official, his or her title notwithstanding, is only liable for his or her own 15 misconduct”). Simply agreeing with a validation decision is insufficient to demonstrate a 16 constitutional violation. Plaintiff has had multiple opportunities to amend his pleading to state 17 sufficient factual allegations as to defendants, and in the last order, the court provided detailed 18 information as to the governing standards. Thus, the undersigned recommends that defendant 19 Revell be dismissed from this action without leave to amend, but without prejudice. 20 The second amended complaint states potentially cognizable due process claims for relief 21 against defendants Mitchell and Inch pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If 22 the allegations of the second amended complaint are proven, plaintiff has a reasonable possibility 23 of prevailing on the merits of this action. 24 In accordance with the above, IT IS HEREBY ORDERED that: 25 1. Service is appropriate for the following defendants: Mitchell and Inch. 26 2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an 27 instruction sheet and a copy of the second amended complaint filed June 18, 2018. 28 //// 2 1 3. Within thirty days from the date of this order, plaintiff shall complete the attached 2 Notice of Submission of Documents and submit the following documents to the court: 3 a. The completed Notice of Submission of Documents; 4 b. One completed summons; 5 c. One completed USM-285 form for each defendant listed in number 1 above; 6 and 7 d. Three copies of the endorsed amended complaint filed June 18, 2018. 8 4. Plaintiff need not attempt service on defendants and need not request waiver of service. 9 Upon receipt of the above-described documents, the court will direct the United States Marshal to 10 serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment 11 of costs. 12 5. The Clerk of the Court is directed to assign a district judge to this case. 13 Further, IT IS RECOMMENDED that defendant Revell be dismissed from this action 14 without prejudice. 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.” Any response to the 20 objections shall be filed and served within fourteen days after service of the objections. The 21 parties are advised that failure to file objections within the specified time may waive the right to 22 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 Dated: June 21, 2018 24 25 /cw/stin0684.1.amd 26 27 28 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIKEAL GLENN STINE, 12 Plaintiff, 13 14 No. 2:18-cv-0684 KJN P NOTICE OF SUBMISSION OF DOCUMENTS v. BUREAU OF PRISONS, et al., 15 Defendants. 16 17 18 Plaintiff hereby submits the following documents in compliance with the court's order filed _____________________ : 19 ____ completed summons form 20 ____ completed USM-285 forms 21 ____ copies of the ___________________ Amended Complaint 22 23 DATED: 24 25 26 ________________________________ Plaintiff 27 28 1