Langston v. Gamoly et al

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 06/17/20 RECOMMENDING that Blackford, Dollarhide, Clark, Mier and Fox be dismissed as defendants to this action, which shall proceed against defendant Gamoly only. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER SHANE LANGSTON,

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No. 2:16-CV-2361-JAM-DMC-P

Plaintiff,

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v.

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GAMOLY, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the Court is plaintiff’s complaint (ECF No. 1).

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the Court to conduct the screening required by law when the allegations are vague

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and conclusory.
The Court initially addressed plaintiff’s complaint in a screening order. See ECF

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No. 11. In that order, the Court summarized plaintiff’s allegations as follows:

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Plaintiff alleges that Dr. Gamoly violated his eighth
amendment rights to personal safety. Specifically, Plaintiff contends on
January 1, 2016 (and on prior dates), he informed Dr. Gamoly that “due to
a rape case, he had enemy and safety concerns and needed protect[ive]
custody.” Plaintiff alleges that due to Dr. Gamoly’s deliberate indifference
and failure to act on his concerns, Plaintiff was beaten on February 2,
2016, and February 3, 2016, resulting in damage to his face and left eye.
Plaintiff states he was treated for his injuries to his head and eye. Plaintiff
further states that his safety concerns, voiced to Dr. Gamoly, are supported
by Sargent Corona and CCT Brown of the Department of Corrections.
Plaintiff also contends that he was subsequently provided “protection on
sensitive need yard.” Additionally, Plaintiff states that the “defendants”
have violated his Fourteenth Amendment rights.

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Id. at 2-3.

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As to the sufficiency of plaintiff’s claims, the Court determined that plaintiff states a cognizable

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claim against defendant Gamoly. See id. at 4. As to the remaining defendants, the Court stated:

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However, because there are no facts related to Defendants
Blackford, Roy Dollarhide, Nyrene Clark, Mier, or Fox, they are not
proper defendants and thus any claim against them must be dismissed. If
Plaintiff wishes to allege additional facts related to any defendant(s) other
than Dr. Gamoly, he must file an amended complaint realleging the factual
allegations against Dr. Gamoly and including additional factual allegations
against the other defendants.

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Id.

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Plaintiff was provided an opportunity to file a first amended complaint and

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cautioned as follows:

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Because the complaint appears to otherwise state
cognizable claim against defendant Gamoly, if no amended complaint is
filed within the time allowed therefor, the court will issue findings and
recommendations that the remaining defendants be dismissed, as well as
such further orders as are necessary for service of process as to defendant

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///
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Gamoly.

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Id. at 5.

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To date, plaintiff has not filed a first amended complaint, appearing to elect instead to proceed on

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the original complaint against defendant Gamoly only. Accordingly, the Court will recommend

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dismissal of all other defendants and, by separate order, will direct service of process on

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defendant Gamoly.

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Based on the foregoing, the undersigned recommends that Blackford, Dollarhide,

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Clark, Mier, and Fox be dismissed as defendants to this action, which shall proceed against

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defendant Gamoly only.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal. See

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

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Dated: June 17, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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