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McMillan v. Ringler

United States District Court, E.D. California

December 19, 2014

EDWIN MCMILLAN, Plaintiff,
v.
S. RINGLER, et al., Defendants

Edwin McMillan, Plaintiff, Pro se, REPRESA, CA.

For S. Ringler, Correctional Officer, D. Henry, Correctional Lieutenant, A. Scotland, Correctional Lieutenant, Ruiz, Zuniga, Muldong, J. Popovits, E. Arnold, K. Young, G. Swarthout, Defendants: Suzanne Berry Antley, LEAD ATTORNEY, Office of the Attorney General, San Diego, CA.

FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Presently before the court is defendants' motion to dismiss. (ECF No. 29.) For the following reason, the undersigned recommends that defendants' motion be denied, except as to (i) the sixth claim against defendant Muldong, (ii) the eighth claim against defendant Warden Swarthout in his official capacity, and (iii) the ninth claim, under California Civil Code § 52.1, against defendants Henry, Scotland, Ruiz, Muldong, Popovits, Arnold, Young, and Swarthout.

I. Background

A. Procedural Background

On March 25, 2013, plaintiff filed his initial complaint. (ECF No. 1.) On January 10, 2014, plaintiff filed the operative first amended complaint (" FAC, " ECF No. 18), naming as defendants S. Ringler, D. Henry, A. Scotland, M. Ruiz, Zuniga, R. Muldong, J. Popovits, E. Arnold, K. Young, and Warden Swarthout. The first nine defendants are sued in their individual capacities; the latter is sued in both his individual and official capacity. (Id. at 2.) On March 12, 2014, the court screened the FAC and deemed service appropriate on all ten named defendants. (ECF No. 17.)

On July 1, 2014, defendants filed a request to seal documents. (ECF No. 28.) On September 9, 2014, after considering plaintiff's opposition to this request (ECF No. 32), the court granted the request to seal, on the grounds that " disclosure of the documents to plaintiff could jeopardize the safety and security of the institution." (ECF No. 39 at 1.) The court further directed as follows:

Plaintiff shall not have access to the subject documents. Should the court later find, when considering the merits of defendants' motion to dismiss, that plaintiff should be accorded the opportunity to respond to the substance of the confidential documents, it will appoint counsel for such limited purpose pursuant to an Attorneys' Eyes Only Protective Order, and direct counsel to file a response on plaintiff's behalf.

(Id.) On July 1, 2014, defendants filed a motion to dismiss the FAC in its entirety. (ECF No. 29.) On August 15, 2014, plaintiff filed an opposition thereto (ECF No. 33), and on August 21, 2014, defendants filed their reply (ECF No. 34). By order dated September 9, 2014, the court ordered plaintiff's sur-reply (ECF No. 38) stricken from the record. (ECF No. 39.)

The court now turns to the merits of defendants' motion to dismiss.

B. Factual Background

The following facts are alleged in plaintiff's first amended complaint and ...


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