Opinion
No. 2:14-cv-2267 WBS AC P
01-30-2015
MAXIMILIANO MENDEZ, Plaintiff, v. J. MACOMBER, et al., Defendants.
ORDER
On December 17, 2014, the undersigned recommended that this action be dismissed without prejudice due to plaintiff's failure to submit a properly completed in forma pauperis application. ECF No. 8. On January 9, 2015, plaintiff filed a letter in this action, denominated by the Clerk of Court as a "Request for Court to Intervene." ECF No. 9. The district judge referred plaintiff's "request" to the undersigned "for determination as to whether it affects the Findings and Recommendations [] issued on December 17, 2014." ECF No. 10 at 1. For the reasons that follow, the undersigned finds that plaintiff's "request" does not change this court's recommendation that this case be dismissed forthwith.
Plaintiff is a state prisoner proceeding pro se with this civil rights action filed pursuant to 42 U.S.C. § 1983. On September 29, 2014, plaintiff filed a complaint without paying the filing fee or submitting an application to proceed in forma pauperis. On October 10, 2014, the court provided plaintiff with a blank application and directed him to submit the completed application or pay the filing fee within thirty days. Plaintiff filed an incomplete application on October 22, 2014. On October 27, 2014, the undersigned denied the application without prejudice, again provided plaintiff with a blank application, and accorded plaintiff an additional thirty days within which to submit a properly completed application. ECF No. 6.
More than thirty days later, on December 10, 2014, plaintiff submitted a letter to the court stating that other inmates were harassing him and had submitted a forged letter in this action "in an attempt to stop, cancel or end the civil suit. . . ." ECF No. 7 at 1. Plaintiff explained that the only letter he had personally submitted to the court was one seeking an extension of time to allow for the arrival of law books from the "United States Government Printing Office, Superintendent of Documents, Public Documents Distribution Center in Pueblo Colorado 81009," and for purposes of filing an amended complaint. Id. at 1-2. No letter meeting this description has been filed in this action. Plaintiff's December 10, 2014 letter also requested a list of attorneys who might be available to represent plaintiff, and noted that plaintiff is an individual with disabilities within the meaning of the Americans with Disabilities Act. Id. at 2.
Review of the docket indicates that no nonparty letter was received in this case, or in the other federal case plaintiff also commenced on September 29, 2014, viz., Mendez v. Macomber, Case No. 2:14-cv-2265 CKD P (dismissed without prejudice on Dec. 17, 2014, for failure to file an amended complaint).
Other than his December 10, 2014 letter (and his current "request"), plaintiff filed no other matters in this case following this court's October 27, 2014 order directing him to submit a properly completed application to proceed in forma pauperis. Therefore, fifty-one days after the court's directive, the undersigned recommended that this action be dismissed without prejudice due to plaintiff's failure to submit a properly completed in forma pauperis application. ECF No. 8.
Thereafter, on January 9, 2015, plaintiff filed the subject "request," both in this case, ECF No. 9, and in Mendez v. Macomber, Case No. 2:14-cv-2265 CKD P. The "request"consists entirely of the following statements, ECF No. 9:
Plaintiff's "request" was disregarded in Mendez v. Macomber, Case No. 2:14-cv-2265 CKD P, because the action had been closed.
I've filed all the needed legal paper work to continue my suit.
Though I continue to request the attention of the court in superceding the detrimental conditions still exist without recourse. (Sic.)
I've submitted the needed paper work.
As I previously said, "the Legal Books have not been returned and I ask the Court to intervene all the same under said docket numbers [citing both the instant case and Case No. 2:14-cv-2265 CKD P].
Thank you.
Liberally construed, plaintiff's "request" implies that he is being denied reasonable access to legal materials and hence is being denied access to the courts. State prisoners have a First Amendment right to access the courts, which includes access to the tools (legal books and materials) necessary to challenge their sentences and conditions of confinement. Lewis v. Casey, 518 U.S. 343, 346, 355 (1996). In light of the importance of this right and in an abundance of caution, the undersigned has reviewed plaintiff's "request" in tandem with his complaint to determine whether dismissal of this action for failure to comply with court rules and procedures would be manifestly unjust.
The court notes, however, that absent plaintiff's payment of the filing fee or the court granting plaintiff in forma pauperis status, this court is precluded from screening the complaint on its merits. See 28 U.S.C. §§ 1915, 1915A.
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Review of the complaint indicates that plaintiff is attempting to state several disparate claims against various defendants. See ECF No. 1. The complaint is replete with allegations that prison gang members are actively collecting personal information about plaintiff and his extended family (including aunts, uncles, cousins, nieces, nephews), through a variety of means (including cell phones and "numerous pictorial hearing devices . . . stolen [from] law enforcement" which, in turn, are allegedly relied upon by the FBI), and are extorting money from plaintiff and his family under threats of violence and acts of sexual molestation against plaintiff's children. The complaint also alleges deliberate indifference to plaintiff's serious medical needs; excessive force against plaintiff by correctional officers; transfer of illegal drugs to inmates from outside visitors; and, inter alia, the unauthorized tampering by other inmates of plaintiff's subscriptions to magazines and law books. These myriad allegations comprise an impermissible "shotgun" complaint, asserting unrelated allegations against multiple defendants. See Fed. R. Civ. P. 18-20; George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) ("[u]nrelated claims against different defendants belong in different suits"). The undersigned finds that neither plaintiff's complaint not his "request" states a coherent constitutional or otherwise meritorious claim. Moreover, plaintiff's "request" may not properly be construed as objections to this court's findings and recommendations.
For these reasons, the undersigned finds that plaintiff's Request for Court Intervention does not affects the Findings and Recommendations issued on December 17, 2014. Dismissal without prejudice, due to plaintiff's failure to comply with this court's October 27, 2014 order requiring payment of the filing fee or submission of a properly completed application to proceed in forma pauperis, remains appropriate. The district judge is advised to adopt this court's Findings and Recommendations, ECF No. 8. DATED: January 30, 2015
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE