Williams v. Griffeth et al

Filing 33

ORDER - IT IS ORDERED that the Magistrate Judge's 25 Report and Recommendation is accepted and adopted by the Court. FURTHER ORDERED that the pla's 18 Motion for Leave to File an Amended Complaint is denied. Signed by Judge Paul G Rosenblatt on 11/4/10. (SAT)

-MEA Williams v. Griffeth et al

Doc. 33

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Ronald Williams, Plaintiff, vs. CO II B. Griffeth, et al., Defendants.

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No. CV-10-0237-PHX-PGR (MEA)

ORDER

Having considered Magistrate Judge Aspey's Report and Recommendation in light of the plaintiff's Objection to the Report and Recommendation (Doc. 28), the Court finds that the Magistrate Judge correctly determined that the plaintiff's Motion for Leave to File an Amended Complaint (Doc. 18) should be denied. At issue is the plaintiff's request to amend his complaint to add a new defendant, Correctional Major Lao, to his Eighth Amendment claim. Pursuant to the Court's original screening order, the only remaining claim of the original complaint is an Eighth Amendment claim against defendants Griffeth and Evans for leaving the plaintiff in his cell for more than fifteen minutes after they discharged an entire canister of pepper spray into the cell; the Court dismissed the plaintiff's claims arising from the defendants' decision to use pepper spray

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and the manner in which they used it. In his proposed amended complaint, the plaintiff alleges that Lao, by failing to meet with the plaintiff as he promised he would, failed to correct the situation using non-forceful means before it escalated to the level that resulted in the pepper-spraying. The defendants argue, presumably pursuant to Fed.R.Civ.P. 15(a)(2), that the proposed addition is futile because the proposed amended complaint fails to state a claim against Lao. The Magistrate Judge concluded that the proposed amended complaint fails to state a claim against Lao pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Whether viewed pursuant to the futility standard of Rule 15(a) or the failure to state a claim standard under § 1915(e) or 28 U.S.C. § 1915A(b)(1), which in practical effect constitute the same standard, the Court agrees that the plaintiff's allegations against Lao do not state an Eighth Amendment claim even when liberally construed. First, since the Court has already ruled that the use of pepper spray on the plaintiff did not constitute a constitutional violation, Lao's alleged failure to intervene to prevent the pepper-spraying does not constitute a constitutional violation, and (2) there are no allegations in the proposed amended complaint that Lao knew that the plaintiff had been left in his cell for an unreasonable amount of time after pepper spray had been discharged into his cell. Therefore, IT IS ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 25) is accepted and adopted by the Court. IT IS FURTHER ORDERED that the plaintiff's Motion for Leave to File an Amended Complaint (Doc. 18) is denied. DATED this 4th day of November, 2010.

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