Romo v. Cate et al

Filing 55

ORDER signed by Magistrate Judge Dale A. Drozd on 9/15/2014 AMENDING 53 FINDINGS and RECOMMENDATIONS. Plaintiff has fourteen days from the date of this order in which to file objections, if any, to the amended recommendations listed in paragraph 1 of this order. Failure to file objections within the specified time may waive the right to appeal the District Court's order. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EZEQUIEL ROMO,

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Plaintiff,

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No. 2:11-cv-2898 GEB DAD P

v.

ORDER

MATTHEW CATE, et al.

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Defendant.

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Plaintiff is a state prisoner proceeding with an action for alleged civil rights violations

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pursuant to 42 U.S.C. § 1983. On August 29, 2014, the court issued findings and

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recommendations granting in part and denying in part defendants’ motion to dismiss. (See Doc.

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No. 53.) On September 11, 2014, defendants filed a request for clarification of the findings and

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recommendations. (Doc. No. 54.) Therein, defendants suggest that the court intended to dismiss

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defendants J. Baker, Williams, Holstrom and Walker completely from the action, but, they argue,

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the language of the court’s recommendation indicating that the Eighth Amendment conditions-of-

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confinement claim is viable as to all defendants is inconsistent with that intention. They seek

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clarification of that apparent inconsistency. They further request additional time in which to file

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formal objections to the findings and recommendations in the event the court states that defendant

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J. Baker, Williams, Holstrom and Walker should remain as defendants to the conditions-of-

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confinement claim.1

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The defendants are correct that the undersigned intended to recommend that J. Baker,

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Williams, Holstrom and Walker should be dismissed completely from this action, pursuant to

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Federal Rule of Civil Procedure 12(b)(6). Defendants J. Baker, Williams and Holstrom are

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named in the complaint as officers involved in the inmate appeals process, which the court found

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could not be the basis for any viable civil rights claim in this case. (See Fifth Amended

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Complaint (Doc. 21) at 6, ¶¶ 20-22; Findings and Recommendations (Doc. No. 53) at 5-6.)

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Insofar as they are identified solely with plaintiff’s administrative appeals process, it is not

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plausible that defendants J. Baker, Williams and Holstrom could be liable for any other claim

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alleged in the operative complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57

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(2007) (holding that a claim upon which the court can grant relief must have facial plausibility);

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.”) Likewise, the court found defendant Walker, the warden at

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the prison where the events relevant to this action occurred, could not be liable on a theory of

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failure to train or supervise and, further, could not be liable on a theory of respondeat superior on

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any other claim. (Id. at 6-7.) Therefore defendant Walker should be dismissed as a defendant in

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this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations of August 29, 2014 (Doc. No. 53) are amended

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as follows:
a. Paragraph 6 of the Recommendations, page 24, is amended to read, “The court

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should grant the motion to dismiss the Eighth Amendment claim for unconstitutional conditions

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of confinement as to defendants J. Baker, Williams, Holstrom and Walker. As to all other

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Defendants represent that they “do not intend to object to any . . . portion of the findings and
recommendations” other than the status of defendants J. Baker, Williams, Holstrom and Walker
in this case. (Request for Clarification (Doc. No. 54) at 3.)
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defendants, the motion to dismiss the Eighth Amendment claim for unconstitutional conditions of

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confinement should be denied.”

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b. The court adds Paragraph 7 to the Recommendations, which reads, “The court

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should grant the motion to dismiss as to all claims based on the processing or review of plaintiff’s

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underlying administrative inmate appeals.”

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c.

The court adds Paragraph 8 to the Recommendations, which reads,

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“Defendants J. Baker, Williams, Holstrom and Walker should be dismissed from this action.”

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2. The Findings and Recommendations of August 29, 2014, remain otherwise

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unamended.
3. Defendants’ request for an extension of time (Doc. No. 54) in which to file objections

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to the Findings and Recommendations of August 29, 2014, is denied as having been rendered

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moot by this clarification.

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4. Plaintiff has fourteen days from the date of this order in which to file objections, if

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any, to the amended recommendations listed in Paragraph 1 of this Order. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 15, 2014

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hm
romo.2898.f&r.amend

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