Penn v. McDonald et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 5/30/2011 RECOMMENDING that dfts McDonald, Woodford, Keating, Griffith, Barron and Wedemyer be dismissed from this case. Referred to Judge Frank C. Damrell, Jr.; Objections due w/in 21 days.(Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARLIN PENN
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Plaintiff,
No. CIV S-10-2256 GGH (TEMP) P
vs.
McDONALD, et al.
Defendants.
FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action
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under 42 U.S.C. § 1983. By separate order filed concurrently herewith, the undersigned
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performed its duty under 28 U.S.C. § 1915A to screen any complaint “in which a prisoner seeks
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redress from a governmental entity or officer or employee of a governmental entity.” The court
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found that plaintiff has stated a cognizable claim only against defendant Harper and ordered
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plaintiff to provide the documents necessary to effect service on him.
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As to the other named defendants, plaintiff has not provided sufficient factual
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information to allege a plausible, specific link between them and any act that, if proven, would
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subject them to liability under 42 U.S.C. § 1983. “A claim has facial plausibility when the
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plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
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To make a plausible claim, plaintiff must allege with at least some degree of particularity overt
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acts which defendants engaged in that support plaintiff’s claim. Jones v. Community Redev.
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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Therefore the complaint must allege in specific
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terms how each named defendant is involved. Furthermore, vague and conclusory allegations of
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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673
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F.2d 266, 268 (9th Cir. 1982).
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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative
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link or connection between an individual defendant’s actions and the claimed deprivation. Rizzo
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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.
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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In his first amended complaint, plaintiff fails to make
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that required link with respect to defendants McDonald, Woodford, Keating, Griffith, Barron and
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Wedemyer. Therefore, those defendants should be dismissed.
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Accordingly, IT IS RECOMMENDED that defendants McDonald, Woodford,
Keating, Griffith, Barron and Wedemyer be dismissed from this case.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: May 30, 2011
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/s/ Gregory G. Hollows
___________________________________
GREGORY H. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
GGH:hm
penn2256.57
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