Oubichon v. Carey

Filing 52

ORDER signed by District Judge Christina A. Snyder on 2/27/14: Plaintiff's motion to file a TAC is hereby granted. Service is appropriate on the additional defendants C.L. Parks, J. Maloney, C. Orrick, K. Jessup, and J. Harmer. The Clerk o f the Court shall send plaintiff five USM-285 forms, one summons, an instruction sheet and a copy of the TAC filed September 11, 2012. Defendant Carey's motion to dismiss is hereby GRANTED. Plaintiff's motion for default judgment, is hereby DENIED as moot. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OUBICHON

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Plaintiff,

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vs.

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WALKER, ET AL.
Defendants.

No. 2:06-cv-02749-CAS

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ORDER

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Plaintiff is a state prisoner proceeding pro se, seeking relief pursuant to 42

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U.S.C. § 1983. This proceeding was referred to this Court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff filed his initial complaint on December 6, 2006, against defendant

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Tom Carey. On September 11, 2012, plaintiff submitted a motion for leave to file

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a third amended complaint (“TAC”), dkts.40-41, adding defendants C.L. Parks, J.

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Maloney, C. Orrick, K. Jessup, and J. Harmer (“the additional defendants”). The

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TAC alleges that, subsequent to a prison riot not involving plaintiff, he was

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confined to a dining hall containing a toilet overflowing with human waste. TAC
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¶¶ 13–29. Plaintiff alleges that he slipped in overflowing water from the toilet,

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fracturing his wrist and hurting his back. Id. ¶ 31. Plaintiff contends he was not

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given adequate medical care to treat his injuries Id. ¶¶ 33–56. Plaintiff asserts

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claims for deliberate indifference to serious medical needs, in violation of the

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Eighth Amendment, and for violations of the Fourteenth Amendment.

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The Court hereby GRANTS the motion for leave to file a third amended

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complaint. After conducting a screening pursuant to 28 U.S.C. § 1915A, the Court

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finds that the TAC states a cognizable claim for relief pursuant to 42 U.S.C.

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§ 1983. Moreover, although defendant Carey submitted a waiver of service, dkt.

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46, the additional defendants have not yet been served. Accordingly, the Court

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finds that service is appropriate for the additional defendants.

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Additionally, on August 27, 2013, defendant Carey filed a motion to dismiss

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the TAC with respect to him. Plaintiff opposed this motion on November 4, 2013,

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and defendant Carey has not replied. After reviewing the motion to dismiss, the

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Court concludes that the motion to dismiss should be GRANTED. The TAC,

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although it names Carey, the warden of plaintiff’s prison, as a defendant, does not

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contain any allegations of actions or failures to act by Carey. Instead, all of the

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TAC’s allegations relate to the additional defendants, who are the correctional

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officers and prison nurse who were allegedly indifferent to plaintiff’s situation.

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Moreover, absent additional specific allegations, defendant Carey cannot be held

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liable for the acts of his subordinates. See Ashcroft v. Iqbal, 556 U.S. 662, 676,

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(2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a

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plaintiff must plead that each Government-official defendant, through the official’s

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own individual actions, has violated the Constitution.”). Accordingly, the Court

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finds that plaintiff has not stated a claim against defendant Carey.

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In accordance with the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to file a TAC is hereby granted.

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2. Service is appropriate on the additional defendants C.L. Parks, J.

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Maloney, C. Orrick, K. Jessup, and J. Harmer.
3. The Clerk of the Court shall send plaintiff five USM-285 forms, one

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summons, an instruction sheet and a copy of the TAC filed September 11, 2012.

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4. Within thirty days from the date of this order, plaintiff shall complete the

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attached Notice of Submission of Documents and submit the following documents

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to the Court:

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a. The completed Notice of Submission of Documents;

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b. One completed summons;

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c. One completed USM-285 form for each defendant listed in

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number 1 above; and

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d. Five copies of the TAC filed September 11, 2012.
5. Plaintiff need not attempt service on the additional defendants and need

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not request waiver of service. Upon receipt of the above-described documents, the

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Court will direct the United States Marshal to serve the additional defendants

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pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

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6. Defendant Carey’s motion to dismiss is hereby GRANTED.

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7. Plaintiff’s motion for default judgment, dkt. 51, is hereby DENIED as

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moot.

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DATED: February 27, 2014

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Christina A. Snyder
UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OUBICHON

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Plaintiff,

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vs.

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WALKER, ET AL.
Defendants.

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No. 2:06-cv-02749-CAS

ORDER

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Plaintiff hereby submits the following documents in compliance with the
Court’s order filed February 27, 2013:

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completed summons form

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completed USM-285 forms

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copies of the First Amended Complaint

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DATED:

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Plaintiff