UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
October 16, 2009
CHARLES WALTON, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WITHIN THIRTY DAYS WHY DEFENDANT MILLER SHOULD NOT BE DISMISSED (Doc. 45)
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Charles Walton, a state prisoner proceeding pro se and in forma pauperis. This action is proceeding on Plaintiff's first amended complaint, filed June 30, 2008, against Defendants Ochoa, Meyers, Chaffer, Tonge,*fn1 Clendaniel, Miller, Lambert, Haley, Arline, Contreras, and DonDiego on Plaintiff's Eighth Amendment claim arising from unsafe conditions of confinement.
On April 29, 2009, the United States Marshal returned the USM-285 form and the summons for Defendant Marion F. Miller, Jr. to the Court. (Doc. 45.) In attempting to serve Mr. Miller, the Marshal was informed that Mr. Miller, an IMAC Chairman, is an inmate at Avenal State Prison, not an employee as represented by Plaintiff. (Id.)
Section 1983 provides a cause of action against those acting under color of state law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff may not sue a fellow inmate, who is a private party and not a state actor, under section 1983. See e.g., Brentwood Academy v. Tennessee Secondary School Athletic Assoc., 531 U.S. 288, 295, 121 S.Ct. 924, 930 (2001); Single Moms, Inc. v. Montana Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) Accordingly, it is HEREBY ORDERED that:
1. Within thirty (30) days from the date of service of this order, Plaintiff shall show cause why Defendant Marion F. Miller, Jr. should not be dismissed from this action; and
2. The failure to respond to this order, or the failure to show cause, will result in the dismissal of Defendant Marion F. Miller, Jr. on the ground that he is not a proper party.
IT IS SO ORDERED.