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Stickler v. Burkad

February 5, 2009

DELBERT STICKLER, PLAINTIFF,
v.
BURKARD, DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER DIRECTING SERVICE

On September 8, 2008, United States Magistrate Judge Dale A. Drozd dismissed pro se prisoner Plaintiff Delbert Stickler's ("Plaintiff") amended complaint for failure to state a claim with leave to amend.*fn1 On October 6, 2008, Plaintiff filed a Second Amended Complaint against Defendant Burkard*fn2 ("Defendant"), a correctional officer at Mule Creek State Prison located in Ione, California, alleging constitutional violations pursuant to 42 U.S.C. § 1983. On January 5, 2009, this action was reassigned to the undersigned. Based on the following, the court DIRECTS SERVICE of Plaintiff's Second Amended Complaint on Defendant.

I. BACKGROUND

Although not entirely clear, Plaintiff's Second Amended Complaint alleges a violation of § 1983 based on Defendant's deliberate indifference to his medical needs, destruction of his religious materials, and throwing away and/or tampering with his legal documents. Specifically, Plaintiff alleges that Defendant (1) refused to allow him to have his inhaler that he needs to breathe; (2) threw away and/or tampered with his legal documents (including sealed legal correspondence); and (3) discarded his religious materials. Sec. Am. Compl. ("SAC") at 5.Plaintiff claims that Defendant was motivated to act by "prejudice against [Plaintiff's Muslim] religion." SAC at 5, unmarked page 7.*fn3

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915A(a), the court must screen cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental agency. The court must dismiss a complaint or portion thereof if a plaintiff has raised claims that (1) are legally frivolous or malicious, (2) fail to state a claim upon which relief may be granted, or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996); Franklin, 745 F.2d at 1227.

The court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt. Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "Unless it is absolutely clear that no amendment can cure the defect . . . , a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

III. DISCUSSION

A. Plaintiff's Claims against Defendant

Plaintiff's allegations against Defendant state a claim pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A and shall proceed, subject to future adversary proceedings.

B. Warnings

1. Address Changes

If Plaintiff's address changes, Plaintiff must file and serve a notice of a change of address in accordance with Rule 83-182(f) and 83-183(b) of the Eastern District of California's Local Rules of Civil Procedure ("Local Rules"). Plaintiff must not include a motion for other relief with a notice of ...


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