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Walton v. California Dep't of Corrections and Rehabilitation

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 4, 2010

CHARLES WALTON, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DISMISSING DEFENDANT MILLER FROM ACTION (Docs. 45 and 63)

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, Clendaniel, Miller, Lambert, Haley, Arline, Contreras, and DonDiego.

On April 29, 2009, the United States Marshal returned the USM-285 form and the summons for Defendant Marion F. Miller, Jr. unexecuted. (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 and 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), and precludes Plaintiff from suing a fellow inmate, who is a private party and not a state actor, 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). Therefore, on October 16, 2009, Plaintiff was ordered to show cause within thirty days why Defendant Miller should not be dismissed from this action. Plaintiff did not file a response.

Accordingly, Defendant Marion F. Miller, Jr. is HEREBY DISMISSED from this action on the ground that he is not a proper party.

IT IS SO ORDERED.

20100204

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