Sullivan v. Biter et al

Filing 36

ORDER ADOPTING 28 Findings and Recommendations and Dismissing Certain Claims and Defendants, signed by District Judge Dale A. Drozd on 4/28/17. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOHN SULLIVAN, 12 13 14 15 No. 1:15-cv-00243-DAD-SAB Plaintiff, v. M.D. BITER, et al., Defendants. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS (Doc. No. 28) 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 20 On November 17, 2016, the assigned magistrate judge issued findings and 21 recommendations, finding that plaintiff stated a claim against defendant Biter based upon his 22 allegations of unconstitutional conditions of confinement in violation of the Eighth Amendment 23 relating to plaintiff’s allegedly contaminated drinking water. (Doc. No. 28.) Concerning all other 24 defendants named and claims asserted by plaintiff, the magistrate judge recommended the action 25 be dismissed for failure to state a cognizable claim. (Id.) The findings and recommendations 26 explains that the magistrate judge initially dismissed this action with leave to amend, and directed 27 plaintiff to either amend his complaint or notify the court of his willingness to proceed only on 28 the claims found cognizable. (Id.) Following months of delay pursuant to various extensions of 1 1 time, plaintiff ultimately advised the court that although he believed the magistrate judge’s 2 findings were wrong and did not wish to amend the complaint. (Id.) The findings and 3 recommendations were served on plaintiff and contained notice that objections thereto were to be 4 filed within fourteen days. Following the granting of several extensions of time in which to do 5 so, plaintiff filed objections on March 8, 2017, asserting that the findings and recommendations 6 were contrary to law. (Doc. No. 35.) 7 Plaintiff argues in his objections that he is unable to allege facts showing that other prison 8 officials were aware of the conditions he complains of without conducting additional discovery.1 9 Nevertheless, plaintiff maintains his allegations are sufficient to state a cognizable claim against 10 these other individuals. Plaintiff further argues that the prison officials’ knowledge can be 11 inferred through common sense, and that the magistrate judge did not construe his pleading 12 liberally enough based on his pro se status. Plaintiff’s arguments are not persuasive. 13 Conclusory allegations that various prison officials knew or should have known about 14 constitutional violations occurring against plaintiff simply because of their general supervisory 15 role are insufficient to state a claim under 42 U.S.C. § 1983. Monell v. Dep’t of Soc. Servs. of 16 New York City, 436 U.S. 658, 691 (1978) (no respondeat superior liability under § 1983); Starr v. 17 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (supervisorial liability under § 1983 exists only if 18 supervisor personally involved in constitutional deprivation or supervisor’s wrongful conduct 19 causally connected to deprivation). 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 21 conducted a de novo review of this case. Having carefully reviewed the entire file, the 22 undersigned concludes the findings and recommendations are supported by the record and by 23 proper analysis. 24 ///// 25 ///// 26 27 28 1 The court notes that should, in the course of discovery, plaintiff become aware of facts indicating the involvement of other defendants in the alleged constitutional deprivation, he may move at that time to amend his complaint in order to allege those newly discovered facts. 2 1 Accordingly: 2 1. The findings and recommendations filed on November 17, 2017 (Doc. No. 28) are 3 4 5 6 7 8 9 10 adopted in full; 2. This action shall proceed on plaintiff’s Eighth Amendment conditions of confinement claim against defendant Biter; 3. All other claims and defendants are dismissed for failure to state a claim upon which relief could be granted and the docket shall reflect these dismissals; and 4. The matter is referred back to the assigned magistrate judge for initiation of service. IT IS SO ORDERED. Dated: April 28, 2017 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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