Spence v. Beard, et al.

Filing 25

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/19/18 ORDERING service is appropriate for defendant Kaur. The clerk of the court shall send plaintiff 1 USM-285 form, 1 summons, instruction sheet and a copy of the second amended complaint 23 to be completed and returned with the notice of submission of documents within 30 days. The clerk of the court shall assign a district judge to this case. U.S. District Judge Morrison C. England Jr. randomly assigned to this case. Also, RECOMMENDING that plaintiff's claims against defendants Ditto and Williams be dismissed without leave to amend. Referred to Judge Morrison C. England Jr. Objections to 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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GERALD SPENCE,

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Plaintiff,

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v.

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G. KAUR, et al.,

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No. 2:16-cv-1828 KJN P

ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with an action filed
pursuant to 42 U.S.C. § 1983. Plaintiff’s second amended complaint is before the court.
Plaintiff alleges that while he was housed at California State Prison-Solano, defendant

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Kaur, Sr. Librarian, retaliated against plaintiff for filing a form 22 against her, by issuing a 128-B

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and then a CDCR-115 (“RVR”) on the same false charges, and that defendants Williams and

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Ditto failed to properly train or supervise Kaur to prevent or correct the retaliation and harm that

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occurred to plaintiff. Although the RVR was subsequently reversed (ECF No. 23 at 5), plaintiff

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lost 30 days yard, resulting in the loss of law library access. Plaintiff seeks unspecified injunctive

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relief and monetary damages.

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The second amended complaint states a potentially cognizable First Amendment claim for

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relief against defendant Kaur pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the

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allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail
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on the merits of this action as to defendant Kaur.

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However, plaintiff’s allegations against defendants Williams and Ditto are solely based on

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a theory of respondeat superior. Defendant Williams was Principal of the Solano Education

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Department, and defendant Ditto was the acting Vice Principal. Such defendants cannot be held

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liable on the ground that, as supervisors, they are liable for the conduct of their subordinate.

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Under section 1983, plaintiff must prove that the defendants holding supervisory positions

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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th

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Cir. 2002). There is no respondeat superior liability, and each defendant is only liable for his or

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her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). A supervisor may be held

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liable for the constitutional violations of his or her subordinates only if he or she “participated in

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or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009).

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Plaintiff makes no such allegation here. Indeed, he fails to allege that either defendant was aware

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plaintiff filed a form 22 against defendant Kaur, or knew Kaur was retaliating against plaintiff by

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pressing the charges.1

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Plaintiff has had multiple opportunities to amend his complaint. Because it appears

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plaintiff can allege no facts setting forth a cognizable civil rights claim against defendants Ditto

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and Williams, it is recommended that plaintiff’s claims against defendants Ditto and Williams be

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dismissed without leave to amend.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Service is appropriate for defendant Kaur.

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As plaintiff was previously advised, an amended complaint supersedes the prior pleading, and
the court cannot refer to a prior pleading to make plaintiff’s second amended complaint complete.
(ECF No. 20 at 8.) In his first amended complaint, plaintiff claimed that defendants Williams and
Ditto were “on notice” of Kaur’s alleged retaliation because both the 128 report and the RVR
require supervisory screening and approval. (ECF No. 19 at 6.) Plaintiff included no such
allegation in his second amended complaint. But in any event, simply being “on notice” of the
128 report and the subsequent RVR does not establish that Williams or Ditto knew that Kaur’s
charges against plaintiff were false, or that Kaur was issuing the charges in retaliation for plaintiff
filing a form-22 against Kaur, let alone establish that Williams or Ditto knowingly participated in
Kaur’s alleged retaliatory acts.
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2. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an
instruction sheet and a copy of the second amended complaint (ECF No. 23).
3. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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b. One completed summons;

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c. One completed USM-285 form; and

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d. Two copies of the endorsed second amended complaint (ECF No. 23).

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4. Plaintiff need not attempt service on defendants and need not request waiver of service.

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Upon receipt of the above-described documents, the court will direct the United States Marshal to

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serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.

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5. The Clerk of the Court is directed to assign a district judge to this case.

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IT IS RECOMMENDED that plaintiff’s claims against defendants Ditto and Williams be

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dismissed without leave to amend.

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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, plaintiff may file written objections

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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.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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

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Dated: January 19, 2018

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/spen1828.1amd

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD SPENCE,

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No. 2:16-cv-1828 KJN P

Plaintiff,

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v.

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G. KAUR, et al.,

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NOTICE OF SUBMISSION OF
DOCUMENTS
Defendants.

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Plaintiff hereby submits the following documents in compliance with the court's order
filed _____________________ :

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completed summons form

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completed USM-285 forms

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copies of the ___________________
Amended Complaint

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DATED:

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Plaintiff

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