Marcus R. Ellington, Sr. v. California Dept. of Corr. and Reh., Secretary of

2:20-cv-09116

C.D. Cal.

Jan 19, 2023

Check Treatment

Docket

MARCUS R. ELLINGTON, SR., Plaintiff, v. CALIFORNIA DEPT. OF CORR. AND REH., SECRETARY OF, ET AL., Defendant(s).

Case No. CV 20-9116-CBM (KK)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

January 19, 2023

Case 2:20-cv-09116-CBM-KK Document 75 Filed 01/19/23 Page 1 of 4 Page ID #:1105

ORDER ACCEPTING AMENDED FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Fourth Amended Complaint, the relevant records on file, and the Amended Report and Recommendation of the United States Magistrate Judge.

On October 20, 2022, the assigned United States Magistrate Judge issued an Amended Report and Recommendation finding the Fourth Amended Complaint should be dismissed with prejudice and without leave to amend for failure to comply with Federal Rule of Civil Procedure 8 (“Rule 8“). ECF Docket No. (“Dkt.“) 70.

The Court has engaged in de novo review of the Amended Report, and the Court accepts the amended findings and recommendation of the Magistrate Judge.

On November 1, 2022, Plaintiff constructively filed a “Motion for leave to file (second) supplemental Statement of Claims to cure the deficiencies claimed by the Magistrate Judge,” which the Magistrate Judge construed as Objections to the Amended Report and Recommendation. Dkt. 71. In addition, on November 3, 2022, Plaintiff constructively filed a “Motion for Leave to File Supplemental Complaint,” seeking leave to supplement the Fourth Amended Complaint with additional claims against additional defendants arising out of their alleged denial of medical treatment that has occurred since he filed the Fourth Amended Complaint. Dkt. 72. The Magistrate Judge construed Docket No. 72 as a Supplement to the Objections filed in Docket No. 71.

On December 6, 2022, Plaintiff constructively filed a Motion to Correct Error of the Court as to Docket No. 72, stating the Court erred because it “has construed the Plaintiffs [sic] Motion for leave to file supplemental complaint” Dkt. 72 “as a response to the Magistrates [sic] FINDINGS AND RECOMMENDATION[(S).” Dkt. 74. Plaintiff also requests that the Court consider the Motion for Leave to File Supplemental Complaint attached as Exhibit A to his Motion to Correct. Dkt. 74. Because Exhibit A to Docket No. 74 is a copy of the document filed in Docket No. 71, which was construed by the Magistrate Judge as Objections to the Amended Report and Recommendation, it appears Plaintiff also is requesting that the Court consider Docket No. 71 as a motion to supplement the Fourth Amended Complaint rather than as Objections to the Amended Report and Recommendation. The Court grants Plaintiff‘s Motion to Correct (Dkt. 74), and considers the Motion for Leave to File Supplemental Complaint attached as Exhibit A to the Motion to Correct and filed at Docket No. 71, along with Plaintiff‘s motion to supplement filed as Docket No. 72.

A trial court has broad discretion in deciding whether to permit a supplemental pleading. See Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988). Here, as with the Fourth Amended Complaint, the Court finds each of the proposed supplemental complaints attached to the “Motion for leave to file (second) supplemental Statement of Claims to cure the deficiencies claimed by the Magistrate Judge” (Dkt. 71), “Motion for Leave to File Supplemental Complaint” (Dkt. 72), and Motion to Correct Error (Dkt. 74) so confusing that the complaint fails to comply with Rule 8. See Little v. Baca, No. CV 13-0373-PA (RZ), 2013 WL 436018, at *3 (C.D. Cal. Feb. 1, 2013) (holding unclear pleadings that “leav[e] it to the Court to figure out what the full array of [Plaintiff‘s] claims is and upon what federal law, and upon what facts, each claim is based,” are subject to dismissal). For example, the “Additional Facts” section appears to allege defendant Oh denied him medical care, but the “Claims for Relief” section does not mention defendant Oh. Dkt. 72. In addition, it is not clear which defendants Plaintiff seeks to add to the action or in what capacity he seeks to add them. For example, it appears Plaintiff is seeking to add defendant Gates based solely on his role as supervisor. However, as previously explained to Plaintiff in the Amended Report and Recommendation, “[u]nder Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013). Moreover, it appears Plaintiff may be seeking to sue defendants Allison, Galstian, and Johnson based solely on their failure to respond to Plaintiff‘s “complaint letter.” Dkt. 72 at 5. Plaintiff, however, is not entitled to any particular response to his grievances or to have his grievances “processed to [his] liking.” See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance procedure.“); Jordan v. Asuncion, No. CV 17-1283 PSG (SS), 2018 WL 2106464, at *3 (C.D. Cal. May 7, 2018) (“[A] prisoner [does not] have a constitutional right to any particular grievance outcome.“). The Court, therefore, finds granting leave to supplement the Fourth Amended Complaint must be denied because permitting the supplemental complaint would be futile. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.“); see also F.B.T. Prods., LLC v. Aftermath Recs., No. CV 07-3314-PSG (MANx), 2012 WL 12919088, at *3 (C.D. Cal. June 27, 2012) (the standard used by district courts in deciding whether to grant or deny a motion for leave to supplement is the same standard used in deciding whether to grant or deny a motion for leave to amend a complaint).

Finally, on November 8, 2022, Plaintiff constructively filed a “Declaration of Plaintiff in Support of the 42 U.S.C. § 1983 Civil Complaint.” Dkt. 73. The Declaration does not appear to contain factual statements that are not otherwise alleged in the Fourth Amended Complaint (dkt. 62), the Supplemental Statement of Claims (dkt. 67), or the proposed supplemental complaints attached to Plaintiff‘s Motion for leave to file (second) supplemental Statement of Claims (dkt. 71), Plaintiff‘s Motion for Leave to File Supplemental Complaint (dkt. 72), and Plaintiff‘s Motion to Correct (dkt. 74). Moreover, in considering whether the Fourth Amended Complaint or any of the proposed supplemental complaints states a claim, the Court has accepted as true all of the material factual statements alleged therein. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). Therefore, while it is not clear which complaint or supplemental statement the Declaration pertains to, it is not relevant to the Court‘s consideration of whether the Fourth Amended Complaint should be dismissed for failure to comply with Rule 8 or whether leave to file the proposed supplemental complaint should be denied.

IT IS THEREFORE ORDERED that Judgment be entered dismissing the Fourth Amended Complaint with prejudice and without leave to amend. IT IS FURTHER ORDERED that Plaintiff‘s Motion for Leave to File Supplemental Complaint is DENIED.

Dated: January 19, 2023.

HONORABLE CONSUELO B. MARSHALL

United States District Judge

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