The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 18) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Marcus R. Ellington ("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 his original complaint onJanuary 5, 2009. (Doc. 1.) The Court dismissed Plaintiff's original complaint with leave to amend on March 31, 2009. (Doc. 16.) Plaintiff filed his first amended complaint on April 9, 2009. (Doc. 18.) Plaintiff's first amended complaint is presently before the Court for screening.
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. 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)).
B. Summary of Plaintiff's Complaint
Plaintiff is currently housed at Kern Valley State Prison in Delano, California. Plaintiff was formerly housed at California Substance Abuse and Treatment Facility ("SATF") in Corcoran, California, where the acts he complains of occurred. Plaintiff names the following defendants: Warden Ken Clark; associate warden Polk; chief deputy warden Diaz; program captain Reynoso; sergeant Lunes; correctional counselor II Henning; Hoaxion, custodial lieutenant; Ayon and W. Jones, custodial officers; and Correctional Counselor I Wiggins. Plaintiff also names the director of corrections as a defendant in the body of his complaint but not in the caption.
Plaintiff alleges the following. On December 27, 2008, at approximately 5 PM, Plaintiff's cellmate Hill told the nurse during pill distribution that he was going to kill himself. Hill was taken to the clinic, where he informed defendant sergeant Lunes that unless Plaintiff was moved, Hill would kill Plaintiff. Defendant Lunes ordered Hill moved to another cell, and Plaintiff was placed into a holding cage at the clinic. Plaintiff's cell was destroyed by a malicious cell search. (Doc. 18, p. 3.)
Defendant Lunes ordered the cell search as punishment for Plaintiff having a series of cell changes due to his bipolar condition. Defendant W. Jones confiscated Plaintiff's property, and failed to leave notice of the confiscated items. The cell search was done without authorization. (Doc. 18, pp. 4-5.)
Plaintiff refused to enter his cell and demanded to be taken to administrative segregation ("ASU") where he would then talk to the captain the next day. Plaintiff was then wheeled back to the holding cage in at the clinic where defendant Lunes informed Plaintiff that he was going to ASU for threatening defendant Lunes and that Plaintiff would be transferred. Plaintiff denies making any threats. Plaintiff was placed in ASU on December 27, 2008. Defendant Captain Reynoso reviewed RVR 08-12-039, pertaining to the charge of threatening staff, and found the charge to be unsubstantiated. Defendant Reynoso changed the charge to "behavior that might lead to violence." (Doc. 18, pp. 6-7.)
Defendant Wiggins delivered Plaintiff to Institution Classification Committee ("ICC") on January 23, 2009, twenty-seven days after Plaintiff's arrival in ASU, in violation of state regulations. Defendant Reynoso recommended Plaintiff's retention in ASU and transfer. Defendant Associate Warden Polk during the ICC hearing found that Plaintiff should be retained in ASU. (Doc. 18, pp. 7-8.)
Plaintiff then contacted defendant deputy chief warden Diaz and explained to him that the threat charge which led to Plaintiff's placement in ASU had been dismissed and that Plaintiff should thus be released. On January 29, 2009, Plaintiff was brought before ICC again, where defendant Diaz stated that at Plaintiff's next ICC hearing, Plaintiff could present his side. Plaintiff at his next ICC hearing was retained in ASU again by defendant Polk. (Doc. 18, pp. 9-11.) At the February 6, 2009 RVR disciplinary hearing, Plaintiff was found guilty by defendant Hoaxion of the charge of behavior that might lead to violence. (Doc. 18, p. 12.)
Plaintiff also makes allegations against the director of Corrections regarding Plaintiff's housing with gang affiliated inmates and his lack of opportunities regarding work time credits. (Doc. 18, pp. 18-21.)
Plaintiff requests as relief: release from ASU, prevention of any potential transfer from ...