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Miller v. Scribner

December 17, 2008

ERNEST MILLER, PLAINTIFF,
v.
A.K. SCRIBNER ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE (Docs. 27 and 34) FINDINGS AND RECOMMENDATIONS FOLLOWING SCREENING OF AMENDED COMPLAINT (Doc. 27)

Order Discharging Order to Show Cause

Plaintiff Ernest Miller ("Plaintiff"), Inmate No. T-97203, 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 an amended complaint on June 9, 2008. (Doc. 27).

On October 10, 2008, the Court issued an order to show cause why this court should not impose the sanction of dismissal pursuant to Fed. R. Civ. P. 11(c)(1) for violation of Fed. R. Civ. P. 11(b), for plaintiff's failure to declare truthfully the number of cases he had filed prior to filing his amended complaint on June 9, 2008.

In response, Plaintiff filed a document entitled, "Motion to be Lodged" on October 21, 2008, stating that the print on the complaint form was too small for him to read, and that he was without his reading glasses. (Doc. 34). Plaintiff has attached to his response an order issued by Magistrate Judge Hollows issued in Miller v. High Desert State Prison et al., Case No. CIV S-06-947 JAM GGH P, directing defendants in that case to respond to plaintiff's allegation that he was denied his property, including his reading glasses. (Doc. 34, Exh. A). Defendants in that case assert that Plaintiff was issued his personal property on July 11, 2008. Because Plaintiff's amended complaint was filed on June 9, 2008, the Court shall discharge the order to show cause, filed October 10, 2008.

Findings and Recommendations Following Screening of Amended Complaint

I. Screening Requirement

Plaintiff Ernest Miller ("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 this action on September 17, 2007. On September 27, 2007, this case was transferred from the North District of California. On May 30, 2008 this Court dismissed plaintiff's complaint with leave to file an amended complaint. (Doc. 24). Plaintiff filed an amended complaint on June 9, 2008. (Doc. 27).

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)).

II. Summary of Plaintiff's Amended Complaint

Plaintiff is currently housed at High Desert State Prison in Susanville, California. The events giving rise to this action allegedly occurred at the Substance Abuse Treatment Facility at Corcoran. Plaintiff names Warden A. K. Scribner, Warden Darren Adams, Acting Captain P. Mendes, CCII B. Kibler, CCI M. Fisher and Tower Guard Officer Oritze as defendants. Plaintiff seeks money damages.

Plaintiff alleges that on March 24, 2005, he attended an ICC Classification Committee meeting. Plaintiff states that defendants Mendes, Kibler, and Fisher were present for defendants Adams and Scribner, and forced plaintiff to either take a cellmate or be placed in Administrative Segregation for discipline. Plaintiff states that he agreed to a cellmate under duress, and alleges that on April 9, 2005, his cellmate threw boiling water on him and attempted to kill him, in retaliation for filing a section 1983 civil rights action in 2003. Plaintiff states that he attempted to go to the shower afterwards, but that defendant Ortize failed to treat his injury. Plaintiff alleges a violation of the Eighth Amendment.

Plaintiff alleges that he was previously assaulted by a cellmate when he was incarcerated ...


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