United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston United States Magistrate Judge
Brandon Bennett, a prisoner proceeding in forma pauperis and
without counsel, has filed what has been construed as two
motions to amend his Complaint (Docs. 14, 15) and a Motion to
Reconsider Appointment of Counsel (Doc. 19).
Motions to Amend Rule 15(a) of the Federal Rules of Civil
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.
Fed.R.Civ.P. 15(a)(1). The Complaint was directed to be
served upon Defendants by Order dated February 27, 2018.
(Doc. 7.) Counsel for Defendants waived service on March 29,
2018 (Doc. 12) and Defendants filed an Answer on April 30,
2018 (Doc. 18). Mr. Bennett's motions to amend were filed
within 21 days of waiver of service of the Complaint,
accordingly the motions to amend will be granted. However,
since Mr. Bennett is a prisoner proceeding in forma pauperis,
the Court must review his amendments to the Complaint under
28 U.S.C. §§ 1915, 1915A. Sections 1915A(b) and
1915(e)(2)(B) require the Court to dismiss a complaint filed
in forma pauperis and/or by a prisoner against a governmental
defendant before it is served if it is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief.
of the Federal Rules of Civil Procedure provides that a
complaint “that states a claim for relief must contain
. . . a short and plain statement of the claim showing that
the [plaintiff] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). That is, a complaint must “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A
complaint's allegations must cross “the line from
conceivable to plausible.” Iqbal, 556 U.S. at 680.
is a two-step procedure to determine whether a
complaint's allegations cross that line. See Twombly, 550
U.S. at 556; Iqbal, 556 U.S. 662. First, the Court must
identify “the allegations in the complaint that are not
entitled to the assumption of truth.” Iqbal, 556 U.S.
at 679, 680. Factual allegations are not entitled to the
assumption of truth if they are “merely consistent with
liability, ” or “amount to nothing more than a
‘formulaic recitation of the elements' of a
constitutional” claim. Id. at 679, 681. A
complaint stops short of the line between probability and the
possibility of relief where the facts pled are merely
consistent with a defendant's liability. Id. at
the Court must determine whether the complaint states a
“plausible” claim for relief. Iqbal, 556 U.S. at
679. A claim is “plausible” if the factual
allegations, which are accepted as true, “allow[ ] the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
678. This inquiry is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679
(citation omitted). If the factual allegations, which are
accepted as true, “do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged-but it has not “show[n]”-“that
the pleader is entitled to relief.” Id.
(citing Fed.R.Civ.P. 8(a)(2)).
Court finds that the claims which Mr. Bennett seeks to add
are frivolous and should be dismissed.
Bennett first seeks to amend his Complaint to add Joshua A.
Racki, the Cascade County Attorney, as a Defendant. He claims
Mr. Racki, as the chief law enforcement official for Cascade
County, is therefore responsible for the custody of federal
inmates in the Cascade County Detention Facility and the
officers cannot be held liable under a respondeat superior
theory under section 1983. Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 691-94
91978). That is, a defendant cannot be held liable just
because they supervise other employees. Instead, supervising
officers can be held liable under § 1983 “only if
they play an affirmative part in the alleged deprivation of
constitutional rights.” King v. Atiyeh, 814
F.2d 565, 568 (9th Cir. 1987). “[A] plaintiff may state
a claim against a supervisor for deliberate indifference
based upon the supervisor's knowledge of and acquiescence
in unconstitutional conduct by his or her
subordinates.” Starr v. Baca, 652 F.3d 1202
(9th Cir. 2011).
supervisor may be liable: (1) for setting in motion a series
of acts by others, or knowingly refusing to terminate a
series of acts by others, which they knew or reasonably
should have known would cause others to inflict
constitutional injury; (2) for culpable action or inaction in
training, supervision, or control of subordinates; (3) for
acquiescence in the constitutional deprivation by
subordinates; or (4) for conduct that shows a ...