Asberry v. Biter

Filing 267

ORDER construing Plaintiff's Pleading as a New Complaint; directing Clerk of Court to open New Case and Transfer Pleading; directing Plaintiff to pay filing fee, file Application to proceed IFP, or Notice in New Action within 30-Days 263 signed by Magistrate Judge Helena M. Barch-Kuchta on 10/24/2022. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,

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Case No. 1:16-cv-01741-JLT-HBK
ORDER CONSTRUING PLAINTIFF’S
PLEADING AS A NEW COMPLAINT

v.

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C. RELEVANTE, et al.,

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ORDER DIRECTING CLERK OF COURT TO
OPEN NEW CASE AND TRANSFER
PLEADING

Defendants.

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ORDER DIRECTING PLAINTIFF TO PAY
FILING FEE, FILE APPLICATION TO
PROCEED IN FORMA PAUPERIS, OR
NOTICE IN NEW ACTION

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THIRTY DAY DEADLINE

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(Doc. No. 263)

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Pending before the Court is Plaintiff’s pro se pleading titled “Motion for Emergency

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Order to Prevent Wrongful Death or Serious Injuries” filed on October 21, 2022. (Doc. No. 263,

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“Pleading”). According to the Pleading, Plaintiff recently was transferred to Wasco State Prison

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(“WSP”) and believes his “life is in danger” and/or he faces “serious injury.”1 (Id. at 1-2).

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Specifically, Plaintiff complains about the condition of his cell at WSP. (See generally id.).

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The Court separately notified appropriate correctional officials of the allegations of death and imminent harm
contained in the Motion.

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Plaintiff describes his assigned cell as having multiple issues to include spiders, spider webs,

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“roaches,” “black bugs and big red bugs,” feces in the toilet, and mold and mildew on the

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mattress. (Id. at 2). Plaintiff purportedly cleaned the cell, but it took him “late into the night.”

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(Id.). Further, Plaintiff’s cell does not have a desk and his ceiling light would not turn off causing

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him to tie a t-shirt over his eyes at night. (Id. at 2-3). Plaintiff alleges his safety is in jeopardy

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due to his status as a disabled inmate and he suspects he is being “set-up” for “murder.” (Id. at 5-

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6). Plaintiff attaches a declaration in support of his Pleading . (Id. at 20-23). As relief, Plaintiff

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seeks an “an emergency court order to prevent death.” (Id. at 25).

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Plaintiff’s operative complaint in the instant action involves claims of deliberate

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indifference to Plaintiff’s serious medical needs in violation of the Eighth Amendment and

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retaliation in violation of the First Amendment stemming from events that occurred at Kern

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Valley State Prison. (Doc. Nos. 1, 17, 18). This case is procedurally postured for trial. (Doc.

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No. 264). The claims alleged in the instant Pleading involve unrelated events at a different

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correctional institution and challenge the conditions of Plaintiff’s current confinement. (See

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generally Doc. No. 263)). Consequently, the Court liberally construes the Pleading as a

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complaint concerning the conditions of Plaintiff’s confinement at WSP, which should have been

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filed in a new action. Thus, the Court will direct the Clerk to open a new civil action and transfer

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the Pleading to the new action as Plaintiff’s construed complaint. If Plaintiff wishes to proceed in

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this new action he shall either pay the $402 filing fee or file the enclosed application to proceed

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informa pauperis within thirty (30) days of receipt of this Order and the Court will then screen the

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construed complaint.

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Accordingly, it is ORDERED:

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1. The Court liberally construes Plaintiff’s Pleading (Doc. No. 263) as a new civil rights

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complaint challenging the conditions of his confinement at WSP seeking emergency

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relief and directs the Clerk of Court to open a new prisoner civil rights action.

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2. The Clerk shall place a copy of this Order as Document No. 1 in the newly opened

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action and place a copy of the Motion (Doc. No. 263) as Document No. 2 in the newly

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opened action and title it “Plaintiff’s construed civil rights complaint seeking
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emergency relief.” The Clerk shall then strike the Pleading from this docket and

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provide Plaintiff with notice of the new civil case number and a blank application to

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proceed in forma pauperis.

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3. Within thirty (30) days of receipt of this Order, Plaintiff shall either pay the $402

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filing fee or file the enclosed application to proceed in forma pauperis if he wishes to

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proceed on his new civil rights complaint challenging the conditions of his

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confinement at WSP seeking emergency relief. Otherwise, Plaintiff shall file a

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“Notice of Voluntary Dismissal Under Rule 41” if he does not wish to proceed in a

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new action.
4. Plaintiff’s failure to timely pay the $402 filing fee, file an application to proceed in

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forma pauperis or file a “Notice of Voluntary Dismissal Under Rule 41” will result in

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a recommendation to dismiss the new action for Plaintiff’s failure to prosecute the new

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action.

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Dated:

October 24, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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