IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 19, 2010
LUIS VALENZUELA RODRIGUEZ, PLAINTIFF,
JAMES TILTON, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge
ORDER DENYING MOTION FOR RECONSIDERATION
This matter is before the court on Plaintiff Luiz Valenzuela Rodriguez's Ex Parte Motion for Reconsideration and/or Correction of Court's Order of Dismissal of Several Defendants filed on November 4, 2010. (Dkt. No. 35.) Plaintiff requests that the court reconsider its September 29, 2010 Order dismissing several defendants and ordering service on the remaining defendants.*fn1
(Dkt. No. 34.) Mr. Rodriguez contends that the court mistakenly caused several defendants to be dismissed and may have inadvertently screened the wrong amended complaint. (Dkt. No. 35 at 1-2.)
The present motion is meritless. Plaintiff failed to show either manifest error or raise new facts or legal authority that could not, with reasonable diligence, have been brought to the court's attention earlier. However, the court does find that it inadvertently failed to include Defendants Campbell, Garcia, and Micholetti among those defendants that were dismissed from this action. Plaintiff failed to allege specific individual conduct by Warden Campbell that affirmatively linked him to Plaintiff's alleged injuries. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009) (noting that supervisory personnel are generally not liable under section 1983 for the actions of their employees, plaintiff must plead that the official, through his or her own individual actions, violated the constitution). Similarly, Plaintiff failed to allege facts sufficient to state an Eighth Amendment claim upon which relief may be granted as to Defendant Micholetti. Plaintiff alleges that Defendant Micholetti confiscated his personal effects (television, clothes, food and other such items) and also "wished [Plaintiff] would've died." (Dkt. No. 32 at 37-38.) Such allegations, without more, are not sufficient to state a claim for deliberate indifference to a serious medical need. Finally, Plaintiff raises no allegations whatsoever against Defendant Garcia. Accordingly, the September 29, 2010 Order shall be modified to reflect that Defendants Campbell, Micholetti and Garcia are dismissed from the action.
Plaintiff further alleges that the Clerk of the Court mistakenly sent him a copy of the February 8, 2010 proposed amended complaint along with a copy of the September 29, 2010 Order.*fn2 The Clerk of Court is instructed to send Plaintiff a file-stamped copy of the July 5, 2010 amended complaint, which is now the operative complaint in this matter. The remainder of the present motion is denied.
Based on the foregoing:
1. Defendants Campbell, Micholetti and Garcia are DISMISSED from this action;
2. The Clerk of the Court shall send Plaintiff a file-stamped copy of the July 5, 2010 Amended Complaint; and
3. Plaintiff's motion to correct the dismissal of defendants is DENIED. PLAINTIFF HAS THIRTY DAYS FROM THE DATE OF THIS ORDER TO SUBMIT THE FORMS AS INSTRUCTED IN THE SEPTEMBER 29, 2010 ORDER OR THIS ACTION WILL BE DISMISSED.