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Rosenblum v. Ellis

July 31, 2008

PHILLIP JON ROSENBLUM, PLAINTIFF,
v.
ELLIS, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1)

I. SCREENING ORDER

Phillip Jon Rosenblum ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on November 21, 2005.

A. Screening Requirement

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 upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Summary of Plaintiff's Complaint

Plaintiff is a state prisoner, currently incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California. The acts he complains of occurred during his incarceration at the State Prison in Wasco, California ("WSP"). Plaintiff names, in their individual capacities, defendants: Correctional Officer Ellis; Warden Pat Vasquez; Chief Deputy Warden Gilbert Robles; Facility Captain (name unknown); Lieutenants (names unknown); and Sergeants (names unknown).

Plaintiff alleges that: he is a sensitive needs ("SN") inmate; he and other SN inmates at WSP were housed in the same building as general population ("GP") inmates; on November 4, 2004, upon returning to the building with other SN inmates from the recreation yard, four GP inmates from their building (whom C.O. Ellis knew had attempted to instigate an attack on Plaintiff in the recent past and whom were known to be Plaintiff's enemies) were out of their cells for the purpose of cleaning the interior of the building; these GP inmates had brooms, mops, and other cleaning supplies that could be used as deadly weapons; C.O. Ellis was in the control tower where he had a view of the entire interior of the building; there was no floor officer escorting the SN inmates safely into their cells that day; upon seeing Plaintiff, the GP inmates began to engage in aggressive looks, conversation amongst themselves, and gestured towards Plaintiff; that the only effort C.O. Ellis made to avoid an altercation was to yell "get back" to the GP inmates -- which was unsuccessful; C.O. Ellis did not initiate any emergency procedures to ensure that Plaintiff was not assaulted; C.O. Ellis did not open Plaintiff's cell door for him to escape the GP inmates; the GP inmates attacked Plaintiff; once the attack began, C.O. Ellis failed to take any action to break up the fight (i.e. sound a personal alarm, fire his "block gun," call for assistance, blow whistle, call for assistance from other officers, etc.); the assault on Plaintiff continued for three to five minutes; it was ultimately broken up by other prison staff who observed it through the window in the fire door; and Plaintiff sustained various physical and emotional injuries as a result of the attack. Plaintiff seeks monetary and declaratory relief.

C. Pleading Requirements

1. Federal Rule of Civil Procedure 8(a)

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

2. Federal Rule of Civil Procedure 18(a)

"The controlling principle appears in Fed.R.Civ.P. 18(a) 'A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.' Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g)." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

Plaintiff is advised that if he chooses to file an amended complaint, and fails to comply with Rule 18(a), the Court will count all frivolous/non-cognizable unrelated claims that are dismissed therein as strikes such that he may be barred from filing in forma pauperis in the future.

3. Linkage Requirement

The Civil Rights Act under which this action was ...


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