Birrell, et al., v. Fox, et al.,

Filing 14

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 08/30/17 ORDERING that defendant Fox shall reply to plaintiffs' amended complaint within the time provided in FRCP 21(a). Also, RECOMMENDING that all defendants other than defendant Fox in his official capacity as Warden of the California Medical Facility be dismissed. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID WESLEY BIRRELL, et al.,

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No. 2:16-cv-1818 JAM CKD P

Plaintiffs,
v.

ORDER AND

JOSEPH A. BICK, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiffs, California prisoners proceeding with counsel, have filed an action for violation

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of civil rights under 42 U.S.C. § 1983. Plaintiffs have paid the filing fee. On March 23, 2017,

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plaintiffs’ complaint was dismissed with leave to file an amended complaint. Plaintiffs have now

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filed an amended complaint.

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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The court has conducted the required screening with respect to plaintiffs’ amended

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complaint and finds that the amended complaint states a claim upon which relief can be granted

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for injunctive relief under the Eighth Amendment against defendant Fox in his official capacity as
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the Warden of the California Medical Facility. No plaintiff has stated a claim for damages,

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however, because there are no specific facts alleged indicating any plaintiff has, as of yet,

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suffered any actionable harm as the result of any of defendants’ actions. See Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (In order to state a claim upon which relief can be granted,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.”) See also 28 U.S.C § 1997e(e) (prisoners may not bring federal action

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for mental or emotional injury without a showing of a prior physical injury).

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Accordingly, IT IS HEREBY ORDERED that defendant Fox shall reply to plaintiffs’
amended complaint within the time provided in Fed. R. Civ. P. 12(a).
IT IS HEREBY RECOMMENDED that all defendants other than defendant Fox in his
official capacity as Warden of the California Medical Facility be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiffs may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiffs are advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: August 30, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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birr1818.1(b)

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