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Mullins v. Wenciker

April 22, 2009

EDWARD J. MULLINS, PLAINTIFF,
v.
R. WENCIKER, ET AL., DEFENDANTS.



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

ORDER DISREGARDING MOTION TO AMEND AS UNNECESSARY (Doc. 80) FINDINGS AND RECOMMENDATIONS FOLLOWING SCREENING OF SECOND AMENDED COMPLAINT (Doc. 79) OBJECTIONS, IF ANY, DUE IN 20 DAYS

Findings and Recommendations Following Screening of Second Amended Complaint

I. Background

Plaintiff, Edward J. Mullins, ("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 an incomplete copy of his complaint on July 18, 2006 in the Central District of California. Plaintiff filed his complete complaint on July 24, 2006. Plaintiff then filed a motion to amend his complaint. On August 14, 2006, the Court granted Plaintiff's motion, dismissed Plaintiff's original complaint, and ordered Plaintiff to file a first amended complaint. Plaintiff filed a first amended complaint on August 25, 2006.

On January 19, 2007, this action was transferred to the Eastern District of California. On April 4, 2008, this Court filed its screening order of Plaintiff's original complaint filed July 24, 2006. On October 6, 2008, Plaintiff filed a motion to amend his complaint (Doc. 73). Plaintiff indicated that the Court had not screened his first amended complaint, but rather his original complaint that had previously been dismissed. On October 30, 2008, the Court issued an order granting Plaintiff the election to proceed with his original and screened complaint filed July 24, 2006, with his first amended complaint filed August 25, 2006, or to file a second amended complaint. (Doc. 77).

Plaintiff has elected to file a second amended complaint. (Docs. 79-80). Plaintiff also filed with his second amended complaint a motion for leave to amend. In light of the fact that the Court granted plaintiff leave to amend, Plaintiff's motion is disregarded as unnecessary, and the Court does not consider defendant's opposition or Plaintiff's reply. (Docs. 82, 83). Plaintiff's second amended complaint is now subject to the Court's screening below.

II. Screening Requirement

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. Pro. 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. Pro. 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. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). 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 Second Amended Complaint

Plaintiff names twenty-one defendants in this action for events allegedly occurring at California Correctional Institution - Tehachapi, Pelican Bay State Prison, and California State Prison - Los Angeles County. Plaintiff seeks money damages, attorneys' fees and costs, and equitable relief.

B. Events at California State Prison - Tehachapi

i. Claims Regarding Property Deprivation

Plaintiff alleges that on May 1, 2006, a Director's Level decision ordered that Plaintiff's personal property be returned to him as soon as possible. Despite the decision, Plaintiff alleges that on May 5, 2006, defendant R. Wenciker destroyed plaintiff's property, including photos of his twin daughters, in retaliation for Plaintiff's litigation activities. (Doc. 79, p. 14). Plaintiff alleges that defendant Wenciker elected not to comply with the California Code of Regulations in disposing of his property, and that the disposal constituted an unauthorized destruction. (Id., p.15 at ΒΆΒΆ4, 5). Plaintiff alleges a violation of the First Amendment of the ...


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