Bridgewater v. Cate, et al

Filing 69

ORDER to SHOW CAUSE signed by Magistrate Judge Dale A. Drozd on 5/27/2014 GRANTING defendant Hickman's 67 request for the court to conduct a sua sponte screening of the amended complaint; within 14 days, plaintiff shall SHOW CAUSE in writing w hy the court should not dismiss defendant Hickman; and defendant Hickman's 68 motion for an extension of time to file an answer to the amended complaint is DENIED as unnecessary; defendant Hickman is relieved of having to file an answer in this action until further order by the court. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEITH BRIDGEWATER,

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Plaintiff,

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v.

No. 2:10-cv-2971 TLN DAD P

ORDER TO SHOW CAUSE

MATTHEW CATE, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. Pending before the court is defendant Hickman’s request for the court to

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conduct a sua sponte screening of plaintiff’s amended complaint as well as defendant Hickman’s

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motion for a second extension of time to file an answer.

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By way of background, plaintiff is proceeding on an amended complaint against

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defendants Turner, Virga, and Hickman. On December 13, 2013, the assigned district judge

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granted in part and denied in part defendants’ motion to dismiss and ordered defendants to file an

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answer to plaintiff’s Eighth Amendment inadequate medical care claims and state law claims for

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negligence. After granting defendants’ motions for an extension of time to file an answer,

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defendants Turner and Virga filed their answers, and defendant Hickman filed the pending

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request for the court to conduct a sua sponte screening of plaintiff’s amended complaint as well as

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a motion for a second extension of time to file an answer.
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In defendant Hickman’s request for the court to conduct a sua sponte screening of

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plaintiff’s amended complaint, defense counsel argues that defendant Hickman is not a proper

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party to this action, and the court should dismiss him. Specifically, in plaintiff’s amended

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complaint, plaintiff complains that he was injured when he fell as he attempted to gain access to

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the upper bunk bed in 2009. He alleges that defendant Hickman was at all times mentioned in the

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complaint the Secretary of the California Department of Corrections and Rehabilitation

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(“CDCR”). Defense counsel contends, however, that defendant Hickman was no longer the

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Secretary at CDCR effective March 1, 2006.

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After reviewing defendant Hickman’s request and declaration as well as plaintiff’s

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amended complaint, it appears that defense counsel is correct and that plaintiff probably intended

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to name Matthew Cate as a defendant. Matthew Cate was the Secretary at CDCR in 2009. In

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fact, plaintiff named Matthew Cate as the defendant in his original complaint, but for some

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reason, he named R. Hickman as the defendant in his amended complaint.

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Under these circumstances, the court will direct plaintiff to show cause as to why the court

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should not dismiss defendant Hickman from this action. Alternatively, plaintiff may move to

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voluntarily dismiss defendant Hickman. In addition, if plaintiff wishes to proceed in this action

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against Matthew Cate, he may file a motion to amend his complaint together with a proposed

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second amended complaint to clarify his allegations and claims against former secretary Cate.

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Finally, the court will relieve defendant Hickman of having to file an answer in this action until

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further ordered by the court.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Defendant Hickman’s request for the court to conduct a sua sponte screening of the

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amended complaint (Doc. No. 67) is granted;

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2. Within fourteen days of the date of service of this order, plaintiff shall show cause in

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writing why the court should not dismiss defendant Hickman; and

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3. Defendant Hickman’s motion for an extension of time to file an answer to plaintiff’s

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amended complaint (Doc. No. 68) is denied as unnecessary. Defendant Hickman is relieved of

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having to file an answer in this action until further ordered by the court.

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Dated: May 27, 2014

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DAD:9
brid2971.osc

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