Opinion
No. 2:11-cv-2898 GEB DAD P
09-15-2014
EZEQUIEL ROMO, Plaintiff, v. MATTHEW CATE, et al. Defendant.
ORDER
Plaintiff is a state prisoner proceeding with an action for alleged civil rights violations pursuant to 42 U.S.C. § 1983. On August 29, 2014, the court issued findings and recommendations granting in part and denying in part defendants' motion to dismiss. (See Doc. No. 53.) On September 11, 2014, defendants filed a request for clarification of the findings and recommendations. (Doc. No. 54.) Therein, defendants suggest that the court intended to dismiss defendants J. Baker, Williams, Holstrom and Walker completely from the action, but, they argue, the language of the court's recommendation indicating that the Eighth Amendment conditions-of-confinement claim is viable as to all defendants is inconsistent with that intention. They seek clarification of that apparent inconsistency. They further request additional time in which to file formal objections to the findings and recommendations in the event the court states that defendant J. Baker, Williams, Holstrom and Walker should remain as defendants to the conditions-of-confinement claim.
Defendants represent that they "do not intend to object to any . . . portion of the findings and recommendations" other than the status of defendants J. Baker, Williams, Holstrom and Walker in this case. (Request for Clarification (Doc. No. 54) at 3.)
The defendants are correct that the undersigned intended to recommend that J. Baker, Williams, Holstrom and Walker should be dismissed completely from this action, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants J. Baker, Williams and Holstrom are named in the complaint as officers involved in the inmate appeals process, which the court found could not be the basis for any viable civil rights claim in this case. (See Fifth Amended Complaint (Doc. 21) at 6, ¶¶ 20-22; Findings and Recommendations (Doc. No. 53) at 5-6.) Insofar as they are identified solely with plaintiff's administrative appeals process, it is not plausible that defendants J. Baker, Williams and Holstrom could be liable for any other claim alleged in the operative complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (holding that a claim upon which the court can grant relief must have facial plausibility); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.") Likewise, the court found defendant Walker, the warden at the prison where the events relevant to this action occurred, could not be liable on a theory of failure to train or supervise and, further, could not be liable on a theory of respondeat superior on any other claim. (Id. at 6-7.) Therefore defendant Walker should be dismissed as a defendant in this action.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations of August 29, 2014 (Doc. No. 53) are amended as follows:
a. Paragraph 6 of the Recommendations, page 24, is amended to read, "The court should grant the motion to dismiss the Eighth Amendment claim for unconstitutional conditions of confinement as to defendants J. Baker, Williams, Holstrom and Walker. As to all other defendants, the motion to dismiss the Eighth Amendment claim for unconstitutional conditions of confinement should be denied."
b. The court adds Paragraph 7 to the Recommendations, which reads, "The court should grant the motion to dismiss as to all claims based on the processing or review of plaintiff's underlying administrative inmate appeals."
c. The court adds Paragraph 8 to the Recommendations, which reads, "Defendants J. Baker, Williams, Holstrom and Walker should be dismissed from this action."
2. The Findings and Recommendations of August 29, 2014, remain otherwise unamended.
3. Defendants' request for an extension of time (Doc. No. 54) in which to file objections to the Findings and Recommendations of August 29, 2014, is denied as having been rendered moot by this clarification.
4. Plaintiff has fourteen days from the date of this order in which to file objections, if any, to the amended recommendations listed in Paragraph 1 of this Order. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: September 15, 2014
/s/_________
DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE