Opinion
No. 2:18-cv-0655 CKD P
08-28-2018
STEVEN GARCIA RODRIGUEZ, Plaintiff, v. DAVID BAUGHMAN, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 1983. The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). As plaintiff was informed in the court's July 30, 2018 order, the court conducted the required screening and found that claim 1 in plaintiff's complaint states a claim upon which relief could be granted arising under the Eighth Amendment against defendant Dr. Friend. As for claim 2 against defendant Warden Baughman, plaintiff does not state a claim upon which relief could be granted as plaintiff does not plead facts which connect defendant Warden Baughman to any actionable injury. Plaintiff was given the option of filing an amended complaint or proceeding on claim 1 against defendant Dr. Friend. Plaintiff has elected to proceed on claim 1 against defendant Dr. Friend.
As plaintiff was informed in the July 30, 2018 order, an official can only be held liable under section 1983 upon a showing of personal participation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). There is no respondeat superior liability under section 1983. Id. "A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for defendant Dr Friend.
2. The Clerk of the Court shall send plaintiff a USM-285 form, a summons, an instruction sheet and a copy of the complaint.
3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form; and
d. Two copies of the complaint.
4. Plaintiff need not attempt service on defendant Dr. Friend and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve defendant Dr. Friend pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. The Clerk of the court assign a district court judge to this case.
IT IS HEREBY RECOMMENDED that defendant Warden Baughman be dismissed.
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)(1). Within fourteen after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time ///// ///// ///// waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: August 28, 2018
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1
rodr0655.1(s)
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff submits the following documents in compliance with the court's order filed __________:
___ completed summons form
___ completed USM-285 forms
___ copies of the __________ Complaint DATED:
/s/_________
Plaintiff