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Thomas v. Perez

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION


February 24, 2009

EDWARD THOMAS, PLAINTIFF,
v.
T. FELKER, T. PEREZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Susan P. Graber United States Circuit Judge

ORDER

Plaintiff is a state prisoner who is proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff alleges five claims for relief: (1) denial of due process regarding a lack of opportunity to pursue administrative appeals and grievances; (2) excessive force; (3) denial of due process on the basis of inadequate medical care; (4) prohibited discrimination under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101--12213; and (5) retaliation against him for filing administrative appeals.

As to claims (1), (2), (3), and (5), Plaintiff's complaint appears to state cognizable claims for relief pursuant to 42 U.S.C. § 1983. If the allegations of the complaint are proved, Plaintiff has a reasonable opportunity to prevail on the merits of this action.

As to claim (4), the discrimination claim, Plaintiff has not sufficiently alleged that Defendants discriminated against him on the basis of a physical handicap. See Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996). Therefore, this claim is dismissed from the action.

Plaintiff has alleged specific facts relating to each named Defendant. Ordinarily, supervisory personnel are not liable under § 1983 for the actions of their employees on a theory of respondeat superior. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (per curiam). However, in this case, Plaintiff has alleged that Warden Felker and Associate Warden Perez failed to respond to several letters sent personally to each of them complaining that Plaintiff was in imminent danger and was requesting a transfer. That allegation establishes a causal link between the supervisory personnel and the constitutional violations and is, therefore, sufficient to state cognizable claims against Warden Felker and Associate Warden Perez.

The court, therefore, finds that service is appropriate and will direct service by the U.S. Marshal without pre-payment of costs. Plaintiff is informed, however, that this action cannot proceed further until Plaintiff complies with this order. Plaintiff is warned that failure to comply with this order may result in dismissal of the action. See Local Rule 11-110. Plaintiff is also advised that the court is not able to make copies of documents for him.

Accordingly, IT IS HEREBY ORDERED that:

1. Service of the complaint is appropriate for all defendants.

2. Claim (4) is dismissed.

3. The Clerk of the Court shall send Plaintiff eighteen USM-285 forms, one summons, an instruction sheet, and a copy of the complaint filed September 17, 2008.

4. Within thirty days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court:

a. The completed Notice of Submission of Documents;

b. One completed summons;

c. Eighteen completed USM-285 forms; and

d. Three copies of the endorsed complaint filed September 17, 2008.

NOTICE OF SUBMISSION OF DOCUMENTS

/ Plaintiff hereby submits the following documents in compliance with the court's order filed completed summons form completed USM-285 forms copies of the Complaint/Amended Complaint DATED: Plaintiff

20090224

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