Leaf v. Felker

Filing 13

ORDER signed by Senior Judge Howard D. McKibben on 4/21/09: Plaintiff's request to proceed in forma pauperis is granted 7 . Service is appropriate for defendant Felker. The Clerk shall send plaintiff a USM-285 form, one summons, an instruction sheet and a copy of the complaint filed July 7, 2008. (Kaminski, H)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se. He seeks ) ) ) Plaintiff, ) ) vs. ) T. FELKER, et al., ) ) ) Defendants. _________________________________ ) STEVEN C. LEAF, 2:08-cv-01554-HDM-RAM ORDER UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

relief pursuant to 42 U.S.C. § 1983 and has requested authority to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to

proceed in forma pauperis will be granted. 1

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. § 1914(a), 1915(b)(1). An

initial partial filing fee of $2.25 will be assessed by this order. 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly

payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be

forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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).

Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. question of law. Such review is essentially a ruling on a

See Chappel v. Lab. Corp. of Am., 232 F.3d 719, Dismissal for failure to state a claim is

723 (9th Cir. 2000).

proper only if it is clear that the plaintiff cannot prove any set 2

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of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).

In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to plaintiff. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Kerner, 404 U.S. 519, 520-21 (1972). Plaintiff claims that on October 3, 2007, he was transferred into facility "C" at High Desert State Prison ("HDSP"). Before Haines v. See

that, he'd been housed in facility "B" at HDSP, a lower custody yard. Plaintiff claims he voiced concerns to prison officials

about the transfer because of a "well documented threat against all white inmates housed on facility `B' whom then are later rehoused on facilities `C' or `D' that have not attacked anyone on facility `B' before being rehoused." He claims that despite his concerns he

was transferred into facility "C" and that sometime later he was "nearly stabbed to death." Plaintiff's grievance regarding these

events, which is attached to the complaint, indicates the attack took place on or around January 11, 2008, and that plaintiff underwent a splenectomy at Renown Medical Center in Reno, Nevada, as a result of his wounds sustained in the attack. The grievance

filed June 22, 2008 ­ nearly nine months after the transfer and more than five months after the attack ­ was denied as untimely. Additional documentation attached to the complaint indicates plaintiff was returned HDSP and placed in the administrative segregation unit on January 20, 2008, and that he participated in 3

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an Institutional Classification Committee hearing on May 8, 2008. The court finds that plaintiff has stated a colorable claim for relief. Felker. Accordingly, the court now orders service of defendant

Additionally, to the extent plaintiff is able to identify

any of the "John Doe" defendants, the plaintiff shall fill out a USM-285 form for such defendants. In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff's request to proceed in forma pauperis is granted; 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. filing fee of $2.25. Plaintiff is assessed an initial partial

All fees shall be collected and paid in

accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith; 3. Service is appropriate for defendant Felker. 4. The Clerk of the Court shall send plaintiff a USM-285 form, one summons, an instruction sheet and a copy of the complaint filed July 7, 2008. 5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court: a. The completed Notice of Submission of Documents; b. One completed summons; c. One completed USM-285 form for each defendant listed in number 3 above, as well as one for any other John Doe defendant plaintiff is able to identify; and d. One copy of the endorsed complaint filed July 7, 2008. 4

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6. Plaintiff need not attempt service on the defendant and need not request waiver of service. Upon receipt of the above-

described documents, the court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs. DATED: This 21st day of April, 2009.

____________________________ UNITED STATES DISTRICT JUDGE

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff DATED: order filed vs. T. FELKER, et al., Defendants. ____________________________________/ Plaintiff hereby submits the following documents in compliance with the court's : completed summons form completed USM-285 forms copies of the Complaint/Amended Complaint NOTICE OF SUBMISSION OF DOCUMENTS STEVEN C. LEAF, Plaintiff, No. 2:08-cv-1554 HDM-RAM IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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