The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE
RESPONSE DUE WITHIN 30 DAYS
Plaintiff Lawahn McElroy ("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 is currently incarcerated at Kern Valley State Prison in Delano, California ("KVSP"). Plaintiff is suing under 42 U.S.C. § 1983 for violations of his rights under the First, Eighth, and Fourteenth Amendments of the U.S. Constitution. Plaintiff names the Department of Corrections, Chief Deputy Warden Chris Chrones, Warden Knowles, Associate Warden Kays, Sergeant Hayden, Sergeant B. Cope, and unknown ("Doe") correctional officers as defendants.
The Court finds that Plaintiff's complaint states some cognizable claims and will give Plaintiff the opportunity to either proceed on the claims found cognizable in this order, or file an amended complaint to remedy the claims that are not cognizable.
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)).
Plaintiff alleges that on February 5, 2007 at KVSP he was escorted outside naked and beaten by unknown correctional officers. Plaintiff alleges that this was done because the officers believed Plaintiff had "severely busted a [sergeant's] head", (Compl. 4), and also out of discrimination toward Plaintiff's religious beliefs. A few hours later, Defendant B. Cope physically attacked Plaintiff allegedly to "fit in" with his fellow correctional officers. (Compl. 4).
At some unspecified point in time, Plaintiff was transferred from KVSP. Plaintiff was transferred back to KVSP on August 24, 2007 and his safety is threatened by the same defendants who previously attacked him. Plaintiff alleges that he has "serious medical needs" and has not received any treatment.
1. First Amendment Claim - Free Exercise ...