(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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVIN FENIX,
Plaintiff,

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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.

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Davin Fenix seeks to hold the defendants liable for violations of his civil rights pursuant

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to 42 U.S.C. § 1983. The magistrate judge screened Plaintiff’s amended complaint pursuant to 28

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U.S.C. § 1915A(a), and found Plaintiff states a cognizable claim for failure to protect against

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Defendants Miller, Cassering, and Soto. (Doc. 19 at 3-4.) However, the magistrate judge found

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Plaintiff failed to state a claim against Governor Newsom and Associate Warden Waddle,

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because he sought to hold them liable based upon their supervisory roles and did not show they

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“were personally involved in or had specific knowledge of Plaintiff’s transfer from HDSP to

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NKSP or the subsequent attack on him.” (Id. at 4-5.) The magistrate judge found leave to amend

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was futile as to these defendants because Plaintiff “failed to provide factual allegations to give

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rise to a claim for relief even after … leave to amend.” (Id. at 5.) Therefore, the magistrate judge

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recommended the claim raised against Newsom and Waddle be dismissed, and the action proceed

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only against Miller, Cassering, and Soto. (Id.)
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Plaintiff filed timely objections to the Findings and Recommendations, asserting that

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Governor Newsom and Associate Warden Waddle should not be dismissed as defendants. (Doc.

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20 at 3.) Plaintiff asserts these defendants “are liable because they created policies that violate

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safety and disregarded a []substantial risk of harm to Plaintiff.” (Id. at 3.) However, Plaintiff

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does not allege any facts—as the magistrate judge observed—supporting a conclusion these

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defendants were aware of a substantial risk of harm to Plaintiff related to his transfer between

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facilities, or the attack upon that occurred after the transfer. Without such allegations, Plaintiff is

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unable to state a claim against Newsom and Waddle. As the magistrate judge observed, “[v]ague

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and conclusory allegations concerning the involvement of supervisory personnel in civil rights

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violations are not sufficient.” (Id. at 5, citing Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982).)

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According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case.

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Having carefully reviewed the matter, the Court concludes the Findings and Recommendations

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are supported by the record and proper analysis. Thus, the Court ORDERS:

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1.

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ADOPTED in full.
2.

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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.

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Governor Newsom and Associate Warden Waddle are DISMISSED as defendants
from the action.

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4.

The Clerk of Court is directed to update the docket.

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5.

This matter is referred to the magistrate judge for further proceedings.

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IT IS SO ORDERED.
Dated:

June 5, 2024

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