Coleman v. Foulk, et al
ORDER signed by District Judge Kimberly J. Mueller on 8/1/18 granting in part and denying in part 54 FINDINGS AND RECOMMENDATIONS: Defendants Swartz and Harrod are dismissed. Plaintiff's third amended complaint states a cognizable claim for relief against defendants Hale and Nelson as reflected in this order. This matter is referred back to the assigned magistrate judge for further proceedings consistent with this order. (Kaminski, H)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SAAHDI ABDUL COLEMAN,
No. 2:13-cv-1753 KJM CKD P
FRED FOULK, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action
seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate
Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 25, 2017, the magistrate judge filed findings and recommendations,
which were served on all parties and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within fourteen days. Plaintiff has filed
objections to the findings and recommendations, objecting to the recommended dismissal of
defendants Hale and Nelson.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,
this court has conducted a de novo review of this case. Having reviewed the file, for the reasons
explained below the court declines to adopt the recommendation to dismiss defendants Hale and
Nelson. Plaintiff has not objected to the recommended dismissal of defendants Swartz and
Harrod; that recommendation will be adopted.
In an order filed June 2, 2015, this court declined to adopt a prior recommendation
to dismiss defendants Hale and Nelson following screening of plaintiff’s first amended complaint.
See ECF No. 25 at 3. Specifically, the court found well-taken plaintiff’s objection that the
magistrate judge had “misconstrued the nature of his claims against these two defendants.” Id.
Plaintiff has adequately alleged that defendants Hale and Nelson
obstructed his efforts to obtain relief from the alleged ongoing
interference with his right to access the courts by improperly
screening out his grievances, refusing to file the grievances, and
delivering them to staff who would then allegedly retaliate against
plaintiff based on the unfiled grievances. Plaintiff has adequately
stated a claim for relief against defendants Hale and Nelson.
Id. This matter is now before the court on plaintiff’s third amended complaint. See ECF No. 53.
The third amended complaint contains several allegations against defendants Hale and Nelson
that continue to support the claim against them found by the court in its June 2, 2015 order. See
ECF No. 53 at, e.g., 3-6, 13, 15. The court finds the third amended complaint states a cognizable
claim for relief against defendants Hale and Nelson and declines to adopt the recommendation
that they be dismissed. The court makes no findings now on the applicability of any ratification
theory of liability to the claim against defendants Hale and Nelson contained in the third amended
complaint. Cf. ECF No. 59 at 1 (in objections, pointing out ratification theory plaintiff says
In accordance with the above, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed October 25, 2017, are adopted in part
and rejected in part;
2. Defendants Swartz and Harrod are dismissed;
3. Plaintiff’s third amended complaint states a cognizable claim for relief against
defendants Hale and Nelson as reflected in this order; and
4. This matter is referred back to the assigned magistrate judge for further
proceedings consistent with this order.
DATED: August 1, 2018.
UNITED STATES DISTRICT JUDGE
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