Meneweather v. Powell et al

Filing 13

ORDER by Judge Saundra Brown Armstrong, GRANTING 12 Motion to Amend Complaint. Supervisory liability claims are added and dismissing supervisory liability claims with leave to amend. Signed by Judge ARMSTRONG on 12/8/08. (lrc, COURT STAFF) (Filed on 12/11/2008) Modified on 12/15/2008 (jlm, COURT STAFF). Modified on 12/15/2008 (jlm, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) B. POWELL, et al., ) ) Defendants. ) ________________________________ ) No. C 07-04204 SBA (PR) ORDER GRANTING MOTION TO AMEND COMPLAINT TO ADD SUPERVISORY LIABILITY CLAIMS AND DISMISSING SUPERVISORY LIABILITY CLAIMS WITH LEAVE TO AMEND (Docket no. 12)

3 TOMAS LOPEZ MENEWEATHER 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff Tomas Lopez Meneweather, a state prisoner currently incarcerated at Salinas Valley State Prison (SVSP), filed the present pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging a constitutional rights violation while incarcerated at SVSP. Plaintiff filed an amended complaint raising the same Eighth Amendment claim from his original complaint. On October 2, 2008, the Court issued an Order of Service. Before the Court is Plaintiff's Motion to Amend the Complaint to Include Defendants K. Nuckles, R. Boccella and G. Neotti (docket no. 12). Upon reviewing Plaintiff's motion, the Court construes his motion as a request to file an amendment to the complaint. A plaintiff may amend his complaint once as a matter of course at any time before a responsive pleading is served. See Fed. R. Civ. P. 15(a). Where a plaintiff seeks to amend after a responsive pleading has already been served, however, the decision whether to grant leave to amend is committed to the sound discretion of the trial court. Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir. 1981). Federal Rule of Civil Procedure 15(a) is to be applied liberally in favor of amendments and, in general, leave shall be freely given when justice so requires. Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). The Court notes that while an order of service has been issued, Defendants in this action have not filed an answer at this time. Plaintiff may as a matter of course amend his complaint because a responsive pleading has not yet been served. See Fed. R. Civ. P. 15(a). While Plaintiff has previously filed an Amended Complaint, the Court finds that it is in the interests of justice to allow Plaintiff filed the aforementioned amendment to the complaint. See Janicki Logging Co., 42 F.3d at 566. Accordingly, Plaintiff's motion for leave to file an amendment to the complaint (docket no. 12)

1 is GRANTED. 2 The Court has reviewed Plaintiff's amendment to the complaint and construes his allegations

3 asserted against the proposed additional Defendants -- SVSP Sergeant K. Nuckles, SVSP Lieutenant 4 R. Boccella and SVSP Associate Warden G. Neotti -- as supervisory liability claims. However, for 5 the aforementioned Defendants to be liable as supervisors, Plaintiff must allege that they 6 "participated in or directed the violations, or knew of the violations and failed to act to prevent 7 them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). He has not made such a claim. 8 Accordingly, Plaintiff's supervisory liability claims against Defendants Nuckles, Boccella and Neotti 9 are dismissed with leave to amend. 10 United States District Court For the Northern District of California 11 12 CONCLUSION For the foregoing reasons, the Court orders as follows: 1. Plaintiff's motion for leave to file an amendment to the complaint (docket no. 12) is

13 GRANTED. The Clerk of the Court is directed to file Plaintiff's motion, which is labeled "Motion to 14 Amend the Complaint to Include Defendants K. Nuckles, R. Boccella and G. Neotti," and docket the 15 aforementioned document as Plaintiff's "Amendment to the Complaint." The Clerk of Court is further 16 directed to mark the Amendment to the Complaint as filed on November 25, 2008, the date it was 17 received by the Court. 18 2. Plaintiff's supervisory liability claims against Defendants Nuckles, Boccella and Neotti 19 are DISMISSED with leave to amend as indicated above. Within thirty (30) days of the date of this 20 Order Plaintiff may file an amended supervisory liability claim against Defendants Nuckles, Boccella 21 and Neotti (Plaintiff shall resubmit only those claims and not the entire complaint) as set forth above. 22 He must clearly label the document his "Second Amendment to the Complaint," and write in the case 23 number for this action. The failure to do so within the thirty-day deadline will result in the dismissal 24 of Plaintiff's supervisory liability claim against Defendants Nuckles, Boccella and Neotti. 25 26 27 3. This Order terminates Docket no. 12.

IT IS SO ORDERED. SAUNDRA BROWN ARMSTRONG

28 DATED: 12/8/08

P:\PRO-SE\SBA\CR.07\Meneweather4204.grantAMEND&DWLA.frm 2

1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 TOMAS L MENEWEATHER, 6 7 8 9 10 United States District Court For the Northern District of California 11 v. B POWELL et al, Defendant. / Plaintiff,

United States District Judge

Case Number: CV07-04204 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District 12 Court, Northern District of California. 13 That on December 11, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said 14 envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 15 16 17 Tomas Lopez Meneweather D35219 Salinas Valley State Prison 18 P.O. Box 1050 Soledad, CA 93960 19 Dated: December 11, 2008 20 21 22 23 24 25 26 27 28 P:\PRO-SE\SBA\CR.07\Meneweather4204.grantAMEND&DWLA.frm 3

Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk