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 (Doc. 21) RESPONSE DUE WITHIN 30 DAYS
Plaintiff Anthony Keel ("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 in the custody of the California Department of Corrections and Rehabilitation. The events in Plaintiff's complaint took place while he was incarcerated at Kern Valley State Prison. Plaintiff brings suit under section 1983 for violations of his rights under the Fifth, Eighth and Fourteenth Amendments.
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's original complaint was filed in the U.S. District Court for the Northern District of California on December 3, 2007 and was transferred to this court on February 19, 2008. Plaintiff subsequently filed three additional motions, (Doc. #10, #11, and #15), which this court construed as a motion to file an amended complaint and granted, (Doc. #16). Plaintiff filed a first amended complaint on February 2, 2009. (Doc. #18). On February 3, 2009, Plaintiff filed a motion seeking to correct his complaint. (Doc. #21). The court will treat Plaintiff's February 3 motion as the operative amended complaint as it is the most recent and complete pleading.
On August 22, 2007, Defendant S. Wash found an incomplete 602 form, used to file inmate administrative grievances, in Plaintiff's cell. The 602 alleged that Defendant Wash discriminated against Plaintiff because she allowed Hispanic inmates out to work while leaving Plaintiff in his cell. Plaintiff was summoned to Defendant Wash's office and they had a talk.
After the talk with Defendant Wash, Plaintiff was approached by a black inmate who asked Plaintiff why he was writing up Defendant Wash. Plaintiff was then attacked from behind by other inmates and lost consciousness. Plaintiff alleges that Defendant Wash instigated this attack by giving the 602 form to a "Mexican Shot Caller". (Compl. 3.) When Plaintiff regained consciousness, he saw Defendant Burrows in the gun tower. Plaintiff alleges that Defendant Burrows allowed the inmates who attacked Plaintiff to leave the scene of the attack without stopping them. Plaintiff alleges that Defendant Burrows watched the entire attack take place and did nothing. Further, Defendant Burrows directed medical staff elsewhere to cover-up the attack on Plaintiff.
Plaintiff was interviewed about the attack on August 23, 2007 by Defendant C. Blackstone. Plaintiff asked to see a doctor and was taken to the cage area. A doctor arrived but ignored Plaintiff.
A week after the incident, Plaintiff appeared before a committee chaired by Defendant Chris Chrono regarding a transfer to a different yard. Plaintiff requested a transfer or placement in protective custody because of the incident with Defendants Wash and Burrows. However, Plaintiff was ...