Davis v. Johnson et al

Filing 43

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/26/18 DENYING 33 Motion for leave to file and amended complaint and DENYING 38 Motion to Stay. Plaintiff's amended complaint 34 is STRICKEN. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS DAVIS,

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No. 2:17-cv-0544 JAM CKD P
Plaintiff,

v.

ORDER

B. JOHNSON, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se and in forma pauperis with an action

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for violation of civil rights pursuant to 42 U.S.C. §1983. On June 28, 2018, plaintiff filed a

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motion for leave to file an amended complaint. Plaintiff seeks to add a claim arising under the

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Fourteenth Amendment. For two primary reasons, the motion will be denied.

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First, the complaint is merely a supplemental complaint (plaintiff does not include the

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Eighth Amendment claim upon which this action is now proceeding) which, under Local Rule

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220, the court does not permit.

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Second, plaintiff’s Fourteenth Amendment claim is not a claim upon which relief can be

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granted. Plaintiff alleges that personal animus caused defendants he identifies as “housing unit

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officers” to house plaintiff on an upper tier, forcing plaintiff, who is mobility impaired, to climb

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stairs. “Housing unit officers” are not identifiable people who can be served with process.

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Further, as has already been explained to plaintiff in the court’s April 18, 2018 findings and
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recommendations, plaintiff’s recourse for being housed under dangerous conditions lies under the

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Eighth Amendment, and not the Due Process Clause. To the extent plaintiff attempts to assert a

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violation of the “Equal Protection Clause” of the Fourteenth Amendment, plaintiff fails to allege

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intentional or purposeful discrimination (unequal treatment of different categories of people on

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the basis of things such as race or religious beliefs). This requirement was also explained to

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plaintiff in the court’s April 18, 2018 findings and recommendations.

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In light of the foregoing, plaintiff’s motion for leave to amend will be denied and his

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amended complaint stricken. Plaintiff has also filed a motion asking that this action be stayed

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pending resolution of plaintiff’s motion for leave to amend. That motion will be denied as moot.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to file an amended complaint (ECF No. 33) is denied;

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2. Plaintiff’s amended complaint (ECF No. 34) is stricken; and

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3. Plaintiff’s motion for a stay (ECF No. 38) is denied.

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Dated: October 26, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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davi0544.mta

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