Opinion
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action under 42 U.S.C. § 1983. Currently under consideration is plaintiff's second amended complaint filed May 5, 2008. For the reasons explained below, the court directs plaintiff to submit documents necessary for service of process on some defendants and recommends that claims against the other defendants be dismissed.
On April 10, 2008, the court found that for the limited purposes of § 1915A screening, the first amended complaint stated a cognizable claim that Florez, Mr. Cullison, Mrs. Cullison, Yeager, Garrison, Cooper, Barter, and Baltzer retaliated against plaintiff and that Florez, Mr. Cullison, Mrs. Cullison, Yeager, Garrison, Cooper, Barter, Baltzer and Miller interfered with his medical treatment in violation of the Eighth Amendment. See 28 U.S.C. § 1915A. The court found that plaintiff failed to state a claim against any other defendants, and gave plaintiff the opportunity either to file an amended complaint or to proceed against the defendants against whom he had stated a claim. On May 5, 2008, plaintiff filed a second amended compliant.
The court has reviewed plaintiff's second amended complaint and, for the limited purposes of § 1915A screening, finds that it states a cognizable claim that Baltzer, Barter, Cooper, Mr. Cullison, Mrs. Cullison, Florez, Garrison and Yeager retaliated against plaintiff and that Baltzer, Barter, Cooper, Mr. Cullison, Mrs. Cullison Florez, Miller, Garrison and Yeager interfered with his medical treatment in violation of the Eighth Amendment. See 28 U.S.C. § 1915A.
For the reasons stated below, the court finds that the complaint does not state a cognizable claim against defendants Woodford, Felker, Dangler, Roche, Grannis or McDonald.
The second amended complaint is nearly identical to the first amended complaint. However, in the second amended complaint, plaintiff adds the allegation that defendants Grannis, McDonald and Roche failed to take action to "correct" the unprofessional conduct of other defendants and that defendant Roche disagreed with another physician about whether to prescribe a particular medication. He also adds the allegation that defendant Dangler misrepresented to the Attorney General the status of an administrative appeal. He also alleges that Felker and Woodford failed adequately to train prison staff.
Plaintiff has failed to cure the deficiencies identified in his initial complaint. As explained in the first screening order, to state a claim under 42 U.S.C. § 1983, plaintiff must allege an identified defendant deprived plaintiff of a right secured to him by the Constitution or laws of the United States while acting under color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988). To state a claim against a supervisor who did not personally inflict the injury alleged, plaintiff must allege the supervisor (1) caused others to act, or knowingly refused to stop them from acting, knowing or having reasonable cause to know they would inflict injury; (2) approved such conduct and injury after the fact; or (3) so failed to train or control subordinates to avoid such injury as to demonstrate reckless or callous indifference to constitutional injury. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); see also, Jones v. Williams, 297 F.3d 930, 937 & fn. 4 (9th Cir. 2002). To state a claim he was denied access to the courts, plaintiff must allege that he was denied necessary assistance in preparing and filing a habeas corpus petition or section 1983 complaint, such as meaningful access to an adequate law library or assistance from persons trained in the law, and that the deprivation actually injured his habeas or section 1983 litigation efforts. Lewis v. Casey, 518 U.S. 343, 351, 354, 356 (1996). To state a claim for violation of the Due Process Clause of the Fourteenth Amendment, a plaintiff must allege a defendant denied plaintiff a specific right protected by the federal constitution without procedures required by the constitution to ensure fairness, or deliberately abused his power, acting without any reasonable justification in aid of any government interest or objective and only to oppress in a way that shocks the conscience. Sandin v. Connor, 515 U.S. 472, 483-84 (1995); Daniels v. Williams, 474 U.S. 327, 31 (1986); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Even with the new allegations, the amended complaint fails to allege facts which state a claim under any theories.
Since plaintiff has not in the second amended complaint alleged facts that suggest he can state a claim, and indeed he filed nearly the identical complaint, the court declines to give plaintiff the opportunity to file yet another amended complaint. Thus, Woodford, Felker, Dangler, Roche, Grannis or McDonald must be dismissed from this action.
Accordingly, it is ordered that the allegations in the pleading are sufficient at least to state cognizable claims against defendants Florez, Mr. Cullison, Yeager, Garrison, Cooper, Barter, Mrs. Cullison, Baltzer and Miller. See 28 U.S.C. § 1915A. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a copy of the pleading filed May 5, 2008, nine USM-285 forms and instructions for service of process on defendants Florez, Mr. Cullison, Yeager, Garrison, Cooper, Barter, Mrs. Cullison, Baltzer and Miller. Within 20 days of service of this order plaintiff shall return the attached Notice of Submission of Documents with the completed summons, the completed USM-285 forms, and ten copies of the endorsed May 5, 2008, complaint. The court will transmit them to the United States Marshal for service of process pursuant to Fed.R.Civ.P. 4. Defendants Florez, Mr. Cullison, Yeager, Garrison, Cooper, Barter, Mrs. Cullison, Baltzer and Miller will be required to respond to plaintiff's allegations within the deadlines stated in Fed.R.Civ.P. 12(a)(1). Failure to comply with this order will result in a recommendation that th is action be dismissed without prejudice.
It further is recommended that this action be dismissed as to Woodford, Felker, Dangler, Roche, Grannis and McDonald for plaintiff's failure to state a cognizable claim against them. See 28 U.S.C. § 1915A; see also Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (indigent prisoner proceeding without counsel must be given leave to file amended complaint unless the court can rule out any possibility that the plaintiff could state a claim).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 15 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed __________________.