Jenkins v. California Department of Corrections and Rehabilitations

Filing 1

ORDER Severing Claims of Marvin Jenkins from Case Number 1:14-cv-01528-MJS (PC), and Directing Clerk's Office to Open New Action for Marvin Jenkins, signed by Magistrate Judge Michael J. Seng on 11/16/14. Thirty Day Deadline for Marvin Jenkins to File a Complaint in his Own Case; Forty-Five Day Deadline for Marvin Jenkins to Submit an Application to Proceed in Forma Pauperis, or Pay the Filing Fee in his Own Case. Case Number 1:14-cv-01795-MJS (PC) opened for Marvin Jenkins. (Attachments: # 1 Complaint and IFP Packet)(Verduzco, M)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 DONNELL WEBB, Plaintiff, 13 14 15 v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILTATION, 16 17 Defendant. Case No. 1:14-cv-01528-MJS (PC) ORDER SEVERING CLAIMS OF MARVIN JENKINS, AND DIRECTING CLERK’S OFFICE TO OPEN NEW ACTION FOR MARVIN JENKINS (ECF No. 7) THIRTY DAY DEADLINE FOR MARVIN JENKINS TO FILE A COMPLAINT IN HIS OWN CASE FORTY-FIVE DAY DEADLINE FOR MARVIN JENKINS TO SUBMIT AN APPLICATION TO PROCEED IN FORMA PAUPERIS, OR PAY THE FILING FEE IN HIS OWN CASE 18 19 20 21 22 Plaintiff Donnell Webb is a state prisoner proceeding pro se in this civil rights 23 action filed on September 29, 2014 pursuant to 42 U.S.C. § 1983. The Complaint, which 24 was dismissed for failure to state a claim, purported to proceed on behalf of class-action 25 plaintiffs including Marvin Jenkins. 26 On October 31, 2014, Marvin Jenkins filed in this action a letter of joinder 27 asserting his claims. 28 On November 6, 2014, Plaintiff filed a first amended complaint, raising only his 1 1 individual claims. (ECF No. 10.) Plaintiff’s first amended complaint has not yet been 2 screened, and will be addressed in a separate order. 3 I. SEVERANCE OF CLAIMS 4 The Court, in its order dismissing the Complaint, determined that the allegations 5 did not provide a basis for a class action, Fed. R. Civ. P. 23(a)(4); Simon v. Hartford 6 Life, Inc., 546 F.3d 661, 664–65 (9th Cir. 2008), and that this action would proceed as 7 an individual civil suit brought by Plaintiff Donnell Webb in his sole behalf. (See ECF No. 8 5 at n.1.) The Federal Rules of Civil Procedure provide that “[o]n motion or on its own, 9 the court may at any time, on just terms, add or drop a party . . . [or] sever any claim 10 against a party.” Fed. R. Civ. P. 21. Courts have broad discretion regarding severance. 11 See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000); Maddox v. 12 County of Sacramento, No. 2:06-cv-0072-GEB-EFB, 2006 WL 3201078, *2 (E.D. Cal. 13 Nov. 6, 2006). Accordingly, Marvin Jenkins must proceed separately, if at all, on the 14 claims he asserts in the October 31, 2014 letter regarding joinder. 15 Jenkins’ claims shall be severed; Plaintiff Webb shall proceed as the sole Plaintiff 16 in this action; and a new action shall be opened for plaintiff Marvin Jenkins. Gaffney v. 17 Riverboat Serv. of Indiana, 451 F.3d 424, 441 (7th Cir. 2006). Marvin Jenkins shall be 18 solely responsible for prosecuting his own action. 19 Since the claims of Marvin Jenkins will be severed, he shall be given thirty days 20 to file, in his own action, a proper complaint. Marvin Jenkins must demonstrate in his 21 individual complaint how the conditions complained of resulted in a deprivation of his 22 constitutional rights. He must set forth “sufficient factual matter . . . to state a claim that 23 is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); accord Moss v. U.S. Secret 25 Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls 26 short of meeting this plausibility standard. Iqbal, 556 U.S. at 679; Moss, 572 F.3d at 27 969. The complaint must specifically state how each defendant is involved. Marvin 28 Jenkins must demonstrate that each defendant personally participated in the deprivation 2 1 of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 2 Marvin Jenkins shall also be required to submit an application to proceed in 3 forma pauperis or pay the $400.00 filing fee for his own action, within forty-five days. 4 II. ORDER 5 Accordingly, based on the foregoing, it is HEREBY ORDERED that: 6 1. 01528-MJS-PC; 7 8 2. The claims of Marvin Jenkins are severed from the claims of Plaintiff Webb; 9 10 Plaintiff Webb shall proceed as the sole plaintiff in case number 1:14-cv- 3. The Clerk of the Court is directed to: a. 11 Open a separate § 1983 civil rights action for Marvin Jenkins, AS- 12 9654, North Kern State Prison, Bldg. # C-1-B, Bunk 150 L, P.O. 13 Box 5004, Delano, CA 93216; b. 14 Assign the new action to the Magistrate Judge to whom the instant 15 case is assigned and make appropriate adjustment in the 16 assignment of civil cases to compensate for such assignment; c. 17 File and docket a copy of this Order in the new action opened for Marvin Jenkins; 18 d. 19 Place a copy of the letter regarding joinder (ECF No. 7), which was 20 filed in the instant action, in the new action opened for Marvin 21 Jenkins; e. 22 Send Marvin Jenkins an endorsed copy of the letter regarding 23 joinder (ECF No. 7), bearing the case number assigned to his own 24 individual action; 25 f. Send Marvin Jenkins a § 1983 civil rights complaint form; and 26 g. Send Marvin Jenkins an application to proceed in forma pauperis. 27 28 4. Within thirty (30) days from the date of service of this Order, Marvin Jenkins shall file an original complaint bearing his own case number and 3 signed under penalty of perjury; 1 2 5. Within forty-five (45) days from the date of service of this Order, Marvin 3 Jenkins shall submit an application to proceed in forma pauperis, or 4 payment of the $400.00 filing fee, in his own case; and 5 6. The failure to comply with this Order will result in a recommendation that the action of Marvin Jenkins be dismissed. 6 7 8 9 IT IS SO ORDERED. Dated: November 16, 2014 /s/ 10 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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