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Brenon v. Ledgerwood

United States District Court, W.D. Washington, Seattle

March 3, 2015

KIRK A. BRENON, Plaintiff,
v.
NANCY LEDGERWOOD, et al., Defendants

ORDER REGARDING MOTION TO AMEND AND DIRECTING SERVICE BY FIRST-CLASS MAIL AND PROCEDURES

MARY ALICE THEILER, Magistrate Judge.

Plaintiff Kirk Brenon, proceeding pro se and in forma pauperis in this civil rights action, filed a Motion for Leave to Amend (Dkt. 25). Now, having considered the motion, defendants' response (Dkt. 26), and the remainder of the record, the Court herein finds and rules as follows:

(1) Plaintiff seeks to file a Second Amended Complaint identifying named defendant David "Doe" as David "Pasoquen, " and adding three other individually named defendants - Dr. Benjamin Sanders, Dr. Roger Higgs, and Dr. Jennifer Jones-Vanderleest. ( See Dkt. 25 and Dkt. 25-1.) Defendants object to the motion only in part, arguing plaintiff fails to adequately allege personal participation by Dr. Sanders or Dr. Jones-Vanderleest, and maintaining he appears to improperly name these individuals based solely on the basis of supervisory responsibility or position. (Dkt. 26.) Plaintiff, in reply, concedes to the accuracy of defendants' argument as to Dr. Jones-Vanderleest, but maintains the inclusion of sufficient facts to infer liability on the part of Dr. Sanders. (Dkt. 28.)

Federal Rule of Civil Procedure 15 provides that "leave [to amend a pleading] shall be freely given when justice so requires." Fed.R.Civ.P. 15 (a). Leave to amend may be denied where there is undue delay, bad faith or dilatory motive, undue prejudice to the opposing party, or when the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962).

The Court finds plaintiff entitled to the requested amendment in part. Plaintiff properly seeks to correctly identify named defendant David Doe as David Pasoquen, and provides an adequate basis for adding Dr. Benjamin Sanders and Dr. Roger Higgs as defendants. While taking no position as to plaintiff's ability to successfully pursue a claim against Dr. Sanders, the Court finds it appropriate to allow plaintiff the opportunity to attempt to establish that this individual was (1) personally involved in the alleged constitutional deprivation, or that (2) there is a "a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.'" Snow v. McDaniel, 681 F.3d 978, 989 (9th Cir. 2012) (a supervisor will not be liable for a constitutional violation committed by his or her subordinate unless the supervisor directly participated in the violation or knew of the violation and failed to prevent it) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) and citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). However, as conceded by plaintiff, he fails to adequately allege personal participation by Dr. Jones-Vanderleest.

Accordingly, plaintiff's Motion for Leave to Amend (Dkt. 25) is GRANTED in part and DENIED in part. The Clerk shall lodge plaintiff's Second Amendment Complaint (Dkt. 25-1) on the docket and shall modify the list of defendants on the docket by replacing David Doe with David Pasoquen, and by adding Dr. Benjamin Sanders and Dr. Roger Higgs as named defendants. However, Dr. Jones-Vanderleest shall not be listed on the docket and will not be considered a defendant to this matter.

(2) Service by Clerk

The Clerk is directed to send the following to Dr. Benjamin Sanders and Dr. Roger Higgs[1] by first-class mail: a copy of plaintiff's complaint, a copy of this Order, two copies of the notice of lawsuit and request for waiver of service of summons, a waiver of service of summons, and a return envelope, postage prepaid, addressed to the Clerk's Office.

(3) Response Required

Defendant(s) shall have thirty (30) days within which to return the enclosed waiver of service of summons. A defendant who timely returns the signed waiver shall have sixty (60) days after the date designated on the notice of lawsuit to file and serve an answer to the complaint or a motion permitted under Rule 12 of the Federal Rules of Civil Procedure.

A defendant who fails to timely return the signed waiver will be personally served with a summons and complaint, and may be required to pay the full costs of such service, pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure. A defendant who has been personally served shall file an answer or motion permitted under Rule 12 within thirty (30) days after service.

(4) Filing and Service by Parties, Generally

All attorneys admitted to practice before this Court are required to file documents electronically via the Court's CM/ECF system. Counsel are directed to the Court's website, www.wawd.uscourts.gov, for a detailed description of the requirements for filing via CM/ECF. All non-attorneys, such as pro se parties and/or prisoners, may continue to file a paper original with the Clerk. All filings, whether filed electronically or in traditional paper format, must indicate in the upper right hand corner the name of the magistrate judge to whom the document is directed.

For any party filing electronically, when the total of all pages of a filing exceeds fifty (50) pages in length, a paper copy of the document (with tabs or other organizing aids as necessary) shall be delivered to the Clerk's Office for chambers. The chambers copy must be clearly ...


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