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Bender v. Sullivan

February 18, 2010

FLOYD EUGENE BENDER, PLAINTIFF,
v.
W. J. SULLIVAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN THIRTY DAYS (Doc. 1)

Screening Order

I. Screening Requirement

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 has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1).

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)).

II. Plaintiff's Claims

A. Summary of Complaint

Plaintiff is currently housed at California State Prison Corcoran. The events giving rise to the claims at issue in this action allegedly occurred at California Correctional Institution Tehachapi (CCI). Plaintiff names as defendants the following individuals: Warden W.J. Sullivan; Chief of Inmate Appeals N. Grannis' Chief Deputy Warden F. Gonzalez; Sergeant Noyce; Dr. McConnell; MTA Tony; Correctional Officer (C/O) Allison; C/O Miller; C/O Williams; John Doe 1 and John Doe 2.

The allegations in this case stem from Plaintiff's visual impairment, and a fall suffered by Plaintiff. Upon Plaintiff's arrival at CCI in October of 2003, Plaintiff was evaluated by a physician and diagnosed as visually impaired. Plaintiff was issued a lower tier chrono, (Compl., ¶ 14). Plaintiff alleges that, prior to his fall in 2006, he personally handed to Defendant Allison a CDCR Form 602, an inmate grievance. Plaintiff was housed on an upper tier, and requested a lower tier assignment. Defendant Allison "choose not honor my complaint or chrono. Plaintiff informed Defendant Allison that he received said chrono months ago. I was told that he would check into my chrono and ground cell. (Compl., ¶ 15). Plaintiff alleges that, as a result of being left on the top tier, he fell.

Plaintiff alleges that he explained to Defendant Williams "that I'm visually impaired and need a ground level cell." She advised Plaintiff that C/O Allison had 15 days to respond to the grievance. On August 8, 2006, Plaintiff "wrote several 602s and inmate request forms" regarding a lower tier assignment. Plaintiff wrote an "inmate request" addressed to Lt. Bryant, styled as " a emergency request form and 602." Plaintiff alleges that Defendants Williams, Bryant and Allison disregarded the regulations and Plaintiff's complaints. (Compl., ¶ 17).

On August 10, 2006, while being escorted down the stairs, Plaintiff alleges that the "correctional officers" failed to "provide adequate escort by holding Plaintiff's biceps or arm while under escort." Upon reaching the last step, Plaintiff fell, landing on the ground. Plaintiff alleges that Defendants Williams, Miller and Allison laughed at Plaintiff. After 5 minutes, medical personnel responded, and Plaintiff was escorted to a wheelchair. Defendants Noyce and John Doe intimated that Plaintiff deliberately fell, and told Plaintiff he should have fell from the top of the stairs. (Compl., ¶ 19).

Plaintiff was taken to "the medical area," and waited in a holding cage for approximately 4 hours until he was seen by a Medical Technical Assistant (MTA). Plaintiff was eventually seen by Dr. McConnell, who prescribed pain medication and ordered an x-ray. Plaintiff was to return in two weeks. (Compl., ¶ 22).

Plaintiff was placed in a different housing unit, in a single cell on ground level. Plaintiff alleges that the next day, August 11th, Defendant Noyce retaliated against Plaintiff by threatening Plaintiff with placement in a management cell or loss of his property if he did not accept a cellmate or a cell move. Plaintiff does not allege where ...


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