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Jones v. Felker

July 21, 2010

MALIK JONES, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.



AMENDED ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently before the court are plaintiff's March 29, 2010 First Amended Complaint and June 7, 2010 "Motion for Judgment by Default." Dckt. Nos. 82 & 83.

I. Motion for Entry of Default Judgment

Plaintiff asks the Court to enter default judgment against all defendants, contending that they were served with the First Amended Complaint on March 14, 2010 and have not filed an answer despite the court's order that defendants respond to the amended complaint within 30 days of its service. Dckt. No. 79, Order of Feb. 12, 2010. Defendants Betti, Brautingham, Cunningham, Hunter, Lebeck, and Callison (collectively, the "served defendants") argue that, because the court has not screened the First Amended Complaint, they are not required to file a response despite the court's order.

The Court has reviewed the docket for the action, which reveals that the court screened plaintiff's initial complaint on September 5, 2008, finding that plaintiff had stated cognizable claims against the served defendants. Dckt. No. 12. The court ordered the served defendants to respond to the complaint as provided by Federal Rule of Civil Procedure 12(a)(1). The served defendants responded with motions to dismiss on August 10, 2009 and October 23, 2009. Dckt. Nos. 58 & 72. In its order of February 12, 2010, the court granted the motions in part and denied them in part, dismissing certain of plaintiff's claims against the served defendants and allowing others to proceed. Dckt. No. 79. In the same order, the court granted plaintiff's request for leave to file an amended complaint to "add new facts and reflect just the incidents involving the '6' (six) defendants and defendant T. Felker, whom the Court granted and ordered process of service on, in this case." The court ordered the served defendants to respond to the amended complaint within 30 days of its service. Plaintiff filed the first amended complaint on March 29, 2010. As of the date of this order, defendant Felker has not yet been served and the served defendants have not filed a response to the amended complaint.

The served defendants contend that they are not required to respond to the amended complaint at this time, citing 42 U.S.C. § 1997e(g). However, that statute expressly provides that a court may require a defendant to respond to a prisoner civil rights complaint if the court finds that the plaintiff has a reasonable opportunity to prevail on the merits. In determining that plaintiff had stated cognizable claims against the served defendants, declining the served defendants' requests to dismiss many of those claims, and ordering the served defendants to file a response to the amended complaint within 30 days of its service, the court required a response from the served defendants under § 1997e(g).

Under Federal Rule of Civil Procedure 55(a), the court must enter default judgment against a party who has "failed to plead or otherwise defend." In this case, the served defendants have defended through their motions to dismiss and opposition to the instant motion for default judgment. While the court is displeased that the served defendants failed to comply with its order of February 12, 2010 by failing to respond to the remaining claims against them within 30 days of service of the amended complaint as ordered, justice would not be served by entry of default based merely on that failure to comply in light of the served defendants' active defense of the action in other instances. Nor may default judgment be entered against defendant Felker, who, as of the date of plaintiff's motion, had not been served with any pleading. Defendants are admonished, however, that failure to respond to the amended complaint as provided in this order may result in sanctions. See E.D. Cal. R. 110.

II. Screening Order -- First Amended Complaint

Pursuant to this court's orders dated February 12, 2010 (Dckt. No. 79, granting plaintiff leave to amend the complaint) and March 17, 2010 (Dckt. No. 81, granting in part defendants' motions to dismiss), plaintiff filed a First Amended Complaint on March 29, 2010. The court has reviewed the amended complaint and, for the limited purposes of § 1915A screening, finds that it states the following cognizable claims:

(1) Against defendants Betti, Brautingham, Cunningham, and Hunter for the use of excessive force against plaintiff in his cell on September 13, 2007 in violation of the 8th Amendment and the 14th Amendment (equal protection). Am. Compl. (Dckt. No. 82) at ¶¶ 12-17, 23-25.

(2) Against defendant Callison for interfering with plaintiff's medical treatment in violation of the 8th Amendment and the 14th Amendment (equal protection). Am. Compl. (Dckt. No. 82) at ¶¶ 19, 26.

(3) Against defendant Lebeck for using excessive force in the course of transporting plaintiff to the Correctional Training Center in violation of the 8th Amendment and the 14th Amendment (equal protection). Am. Compl. (Dckt. No. 82) at ¶¶ 20-21, 27.

(4) Against defendant Felker for deliberately disregarding the above-alleged conduct despite knowledge of it in violation of the 8th Amendment and 14th Amendment (equal protection).

The complaint does not state cognizable claims against defendants Betti, Brautingham, Cunningham, Hunter, Callison, Lebeck, or Felker for violating due process. The court has previously ordered plaintiff's due process claim against defendant Callison dismissed. Dckt. No. 81, Order of March 17, 2010. The due process claims against the remaining defendants are defective for the same reason -- plaintiff's allegations fall within the more specific guarantees of the 8th Amendment and the Equal Protection Clause of the 14th Amendment, and thus must be analyzed under those principles rather than the more generalized guarantee of substantive due process. Albright v. Oliver, 510 U.S. 266, 273 (1994) (Rehnquist, C.J., for plurality) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996). As the facts alleged do not give rise to a claim separately ...


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