The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 1) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Donald J. Ackley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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).
"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. P. 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. P. 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. 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)).
A. Summary of Plaintiff's Complaint
Plaintiff was a prisoner incarcerated at the California State Prison in Corcoran, California ("Corcoran") when the events in his complaint transpired. Plaintiff's complaint does not specifically state the claims he is pursuing but they appear to arise from retaliation for his exercise of his First Amendment rights and use of excessive force in violation of the Eighth Amendment of the United States Constitution. Plaintiff names 15 correctional staff members as defendants. Plaintiff's complaint seeks both monetary and injunctive relief.
Plaintiff alleges that Defendant D. Carroll wrote a disciplinary report against Plaintiff that was dismissed on June 23, 2004. Defendant Carroll began to harass and intimidate Plaintiff as a result of the dismissal. Plaintiff alleges that Defendant Carroll was "wrongly attempting to discredit me at my work site and making it extremely difficult for me to satisfactorily perform my required job duties... and he falsely accused me of having contraband." (Compl. 2-B).
On October 12, 2004, Plaintiff filed an inmate appeal complaining of Defendant Carroll's harassment. Plaintiff alleges that the correctional staff that reviewed the inmate appeal (Defendants J. R. Andrews, D. Stockman, and M. Robicheaux) "covered up Defendant Caroll's misconduct by refusing to conduct an adequate and acceptable review". (Compl. 2-B). As a result of this appeal, Defendant Carroll intensified his harassment. Plaintiff alleges that in one instance Defendant Carroll pushed Plaintiff against the wall, kicked Plaintiff in the leg, and threatened to use his influence with other inmates to harm him. Plaintiff also alleges that Defendant made offensive comments to Plaintiff during strip searches and "search[ed] my cell in a very vigorous manner and [wrote] a disciplinary report on whatever grounds they could come up with." (Compl. 2-C).
On October 14, 2004, Plaintiff filed a second inmate appeal complaining of Defendant Carroll's harassment. Plaintiff again alleges that the correctional staff that reviewed the inmate appeal (Defendants Robincheaux, Stockman, and N. Dill) acted to cover up Defendant Carroll's misconduct.
On October 17, 2004, Plaintiff was attacked by two other inmates at Corcoran. Plaintiff was shot in the face and right foot with an XM-1006 exact impact round by a Defendant Correctional Officer Wright during the fight. Plaintiff was transferred to an outside hospital by ambulance to treat the wounds resulting from the incident. Plaintiff alleges that the attack by the two other inmates was the result of Defendant Carroll following through on his threat against Plaintiff. Plaintiff further alleges that Defendant Floor Officers L. Blevin and D. Uribe witnessed the attack and intentionally did not intervene to stop it so that Defendant Wright could fire the XM-1006 rounds at Plaintiff.
On October 25, 2004, Plaintiff filed a third inmate appeal addressing the October 17 incident.
Plaintiff again alleges that the correctional staff that reviewed the inmate appeal (Defendants Blevin, G. Finley, Uribe, Wright, J. Denney, A.K. Scribner, R. Lopez, and N. Dill) acted to cover up Defendant Carroll's misconduct. Plaintiff also alleges that the members of the Use of Force Committee (named as "Doe" defendants) participated in covering up the incident because ...