(PC) Fenix v. Newsom et al

Filing 24

ORDER ADOPTING 19 Findings and Recommendations to Dismiss Defendants Newsom and Waddle signed by District Judge Jennifer L. Thurston on 6/5/2024. (Lawrence, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVIN FENIX, Plaintiff, 12 13 14 15 Case No. 1:24-cv-0202 JLT SAB (PC) v. GAVIN NEWSOM, et al., ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANTS NEWSOM AND WADDLE (Doc. 19) Defendants. 16 17 Davin Fenix seeks to hold the defendants liable for violations of his civil rights pursuant 18 to 42 U.S.C. § 1983. The magistrate judge screened Plaintiff’s amended complaint pursuant to 28 19 U.S.C. § 1915A(a), and found Plaintiff states a cognizable claim for failure to protect against 20 Defendants Miller, Cassering, and Soto. (Doc. 19 at 3-4.) However, the magistrate judge found 21 Plaintiff failed to state a claim against Governor Newsom and Associate Warden Waddle, 22 because he sought to hold them liable based upon their supervisory roles and did not show they 23 “were personally involved in or had specific knowledge of Plaintiff’s transfer from HDSP to 24 NKSP or the subsequent attack on him.” (Id. at 4-5.) The magistrate judge found leave to amend 25 was futile as to these defendants because Plaintiff “failed to provide factual allegations to give 26 rise to a claim for relief even after … leave to amend.” (Id. at 5.) Therefore, the magistrate judge 27 recommended the claim raised against Newsom and Waddle be dismissed, and the action proceed 28 only against Miller, Cassering, and Soto. (Id.) 1 1 Plaintiff filed timely objections to the Findings and Recommendations, asserting that 2 Governor Newsom and Associate Warden Waddle should not be dismissed as defendants. (Doc. 3 20 at 3.) Plaintiff asserts these defendants “are liable because they created policies that violate 4 safety and disregarded a []substantial risk of harm to Plaintiff.” (Id. at 3.) However, Plaintiff 5 does not allege any facts—as the magistrate judge observed—supporting a conclusion these 6 defendants were aware of a substantial risk of harm to Plaintiff related to his transfer between 7 facilities, or the attack upon that occurred after the transfer. Without such allegations, Plaintiff is 8 unable to state a claim against Newsom and Waddle. As the magistrate judge observed, “[v]ague 9 and conclusory allegations concerning the involvement of supervisory personnel in civil rights 10 violations are not sufficient.” (Id. at 5, citing Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 11 Cir. 1982).) 12 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 13 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 14 are supported by the record and proper analysis. Thus, the Court ORDERS: 15 1. 16 17 ADOPTED in full. 2. 18 19 The Findings and Recommendations issued May 16, 2024 (Doc. 19) are This action SHALL proceed only on Plaintiff’s failure to protect claim against Defendants Miller, Cassering, and Soto. 3. 20 Governor Newsom and Associate Warden Waddle are DISMISSED as defendants from the action. 21 4. The Clerk of Court is directed to update the docket. 22 5. This matter is referred to the magistrate judge for further proceedings. 23 24 25 IT IS SO ORDERED. Dated: June 5, 2024 26 27 28 2

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