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John Michael Kirk v. T. Felker

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


June 17, 2011

JOHN MICHAEL KIRK PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sidney R. Thomas, United States Circuit Judge Sitting by Designation

ORDER

Plaintiff, prisoner at High Desert State Prison proceeding in forma pauperis, filed his complaint pursuant to 42 U.S.C. § 1983 alleging an Eighth Amendment violation by defendants Warden Felker, Chief of Inmate Appeals Grannis, Doctor David, and Doctor James.*fn1

Defendant David was dismissed for lack of jurisdiction. On May 18, 2010, the Court dismissed plaintiff's claims against Felker and Grannis and granted plaintiff leave to amend to cure the pleading deficiencies as to Felker and Grannis. The Court did not grant plaintiff general leave to amend his complaint. On June 14, 2010, defendant James answered plaintiff's complaint. The Court then ordered that discovery be completed by November 15, 2010 and all pretrial motions be filed on or before January 18, 2011. On January 18, 2011, defendant James filed a motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Plaintiff did not respond to the motion. On February 25, 2011, James filed a declaration of counsel in lieu of reply to opposition.

Plaintiff's Motion to Proceed In Forma Pauperis

The Court need not address plaintiff's December 13, 2010 motion to proceed in forma pauperis, because the Court granted plaintiff leave to proceed in forma pauperis in an order filed April 10, 2009.

Plaintiff's December 13, 2010 "Complaint"

On December 13, 2010, plaintiff filed another "complaint," naming defendant Warden McDonald in place of Felker, defendant Chief of Inmate of Appeals Walker in place of Grannis, as well as new defendants Story, Miranda, Langford, Nepomuceno, and Swingle. The complaint form does not contain a statement of plaintiff's claim or requested relief, but refers to attached exhibits of plaintiff's habeas filings in state superior court, which appear to concern events arising out of plaintiff's inmate appeals in 2009 and 2010.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fail[] to state a claim on which relief may be granted," or that "seek[] monetary relief against a defendant who is immune from such relief."

28 U.S.C § 1915(e)(2)(B).

Plaintiff's December 13, 2010 "complaint" fails to adequately amend his original complaint as to Felker and Grannis. In the Court's May 18, 2010 order dismissing plaintiff's claims against Felker and Grannis, the Court identified the following pleading deficiencies in Plaintiff's original complaint: (1) Plaintiff failed to allege any facts indicating defendant Felker's liability as a supervisor, and (2) plaintiff has no due process claim under § 1983 for defendant Grannis' actions solely in the inmate appeals process. Plaintiff's December 13, 2010 filing does not cure either deficiency--it contains no new factual allegations concerning Felker or Grannis (indeed, it does not even name Felker or Grannis, but instead refers to attached habeas filings concerning the conduct of other individuals).

Nor did plaintiff seek permission to amend his original complaint beyond curing the pleading deficiencies as to Felker and Grannis. The Court's May 18, 2010 order did not grant Plaintiff general leave to amend the complaint. At the time of his December 13, 2010 filing, therefore, plaintiff was no longer permitted to amend his complaint "as a matter of course." Fed. R. Civ. Proc. 15(a)(1) ("A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier."). Instead, plaintiff was required to seek "the opposing party's written consent or the court's leave" to amend his complaint. Fed. R. Civ. Proc. 15(a)(2). He did neither.*fn2 Accordingly, IT IS HEREBY ORDERED that plaintiff's December 13, 2010 "complaint" will be stricken.

In addition, because plaintiff's December 13, 2010 filing does not cure pleading deficiencies as to claims against Felker and Grannis and was unaccompanied by a motion for leave to amend the original complaint, IT IS HEREBY ORDERED that, within 21 days of the date of this order, plaintiff will show cause why his claims against Felker and Grannis should not be dismissed. Failure to comply with this order will result in dismissal of plaintiff's claims against defendants Felker and Grannis, pursuant Federal Rule of Civil Procedure 41(b).

Defendant James's Motion for Summary Judgment

As noted above, plaintiff has not opposed James's January 18, 2010 motion for summary judgment.

Local Rule 230(l) provides in part: "Failure of the responding party to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ." In the Court's order filed April 12, 2010, plaintiff was advised of the requirements for filing an opposition to a motion and that failure to oppose such a motion may be deemed a waiver of opposition to the motion.*fn3

Local Rule 110 provides that failure to comply with the Local Rules "or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." In the Court's April 12, 2010 order, plaintiff was also advised that failure to comply with the Local Rules may result in a recommendation that the action be dismissed.

Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides: Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision

(b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.

Id.

Good cause appearing, IT IS HEREBY ORDERED that, within 21 days of the date of this order, plaintiff shall file an opposition, if any he has, to the motion for summary judgment or a statement of non-opposition. Failure to comply with this order will result in dismissal of plaintiff's claims against defendant James, pursuant Federal Rule of Civil Procedure 41(b).

Sidney R. Thomas


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