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Green v. Goldy

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


February 19, 2010

JOHN K. GREEN, PLAINTIFF,
v.
C/O GOLDY ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. § 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).

In his complaint, plaintiff has identified Correctional Officer M. Goldy and the Director of the California Department of Corrections and Rehabilitation as the defendants in this action. Plaintiff alleges as follows. On March 17, 2009, defendant Goldy pulled plaintiff out of the pill line and escorted him in handcuffs to the B-Facility Program Office. During the escort, defendant Goldy attempted to shove plaintiff's head into a fence post and a door frame. Defendant Goldy also ordered plaintiff to enter Cage 1, but as plaintiff proceeded to comply with the order defendant Goldy pushed him forward and caused him to fall. Defendant Goldy then forced plaintiff's face into the pavement resulting in an injury to plaintiff's head, necessitating twelve stitches. In terms of relief, plaintiff requests monetary damages. (Compl. at 3 & Exs.)

The court finds that plaintiff's complaint appears to state an Eighth Amendment excessive use of force claim against defendant Goldy. If the allegations of the complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. The court also finds, however, that plaintiff's complaint does not state a cognizable claim against the Director of the California Department of Corrections and Rehabilitation. It is well established that supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Here, plaintiff has not alleged a specific causal link between any action by this defendant and the claimed constitutional violations.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's application to proceed in forma pauperis (Doc. No. 2) is granted.

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

3. Service of the complaint is appropriate for defendant Goldy. 4. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet, and a copy of the complaint filed January 21, 2010.

5. 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 at the same time:

a. The completed, signed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for the defendant listed in number 3 above; and

d. Two copies of the endorsed complaint filed January 21, 2010.

6. Plaintiff shall not attempt to effect service of the complaint on the defendant or request a waiver of service of summons from the defendant. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

NOTICE OF SUBMISSION OF DOCUMENTS

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

one completed summons form;

one completed USM-285 form; and

two true and exact copies of the complaint filed January 21, 2010.

20100219

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