McElroy v. Deegan

Full title: Marvin McElroy, Plaintiff, v. T. Deegan, et al., Defendants

Court: United States District Court, E.D. California

Date published: Oct 15, 2009

No. CV 1-08-0914-DGC (E.D. Cal. Oct. 15, 2009)

Opinion

No. CV 1-08-0914-DGC.

October 15, 2009

ORDER

DAVID CAMPBELL, District Judge

On June 12, 2008, Plaintiff Marvin McElroy, who is confined in Mule Creek State Prison in Ione, California, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Northern District of California (Doc. # 1). In a June 19, 2008 Order, United States District Judge Vaughn Walker ordered the case transferred to the Fresno Division of this Court (Doc. # 6). Thereafter, Plaintiff filed a First Amended Complaint (Doc. # 15).

This case was reassigned to the undersigned judge on November 25, 2008 (Doc. # 16). Plaintiff has also filed two motions for service of the First Amended Complaint (Doc. ## 17-18). The Court will order Defendants Deegan, Simon, Neri, Jackson, and Boston to answer Plaintiff's excessive force claim in his First Amended Complaint and deny the motions for service as moot.

I. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 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).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

II. First Amended Complaint

III. Failure to State a Claim

¹ Farmer v. Brennan511 U.S. 825834i.e. and Id.

1 As to who may serve a summons see Rule 4 of the Federal Rules of Civil Procedure.

Here, to the extent that Plaintiff presents a claim of failure to protect against Defendants for attempting to place him in the 3 yard, Plaintiff fails to state a claim because Plaintiff was never actually housed in the 3 yard. Because Plaintiff was never actually in danger from any of the inmates who allegedly threatened him, Defendants could not have been deliberately indifferent to a serious risk of harm to Plaintiff. Farmer, 511 U.S. at 837. Consequently, that part of Plaintiff's claim will be dismissed.

IV. Claims for Which an Answer Will be Required

Plaintiff's adequately states a claim of excessive use of force against Deegan, Simon, Neri, Jackson, and Boston. Defendants will be required to answer.

V. Pending Motions

Because the Court is ordering service of Plaintiff's excessive force claim, his motions for service will be denied as moot.

VI. Warnings

A. Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83-182(f) and 83-183(b) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

B. Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5-133(d)(2). Failure to comply may result in the filing being stricken without further notice to Plaintiff.

C. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) Plaintiff's Motions for Service are denied as moot (Doc. ## 17-18).

(2) Plaintiff's failure to protect claim is dismissed without prejudice.

(3) Defendants Deegan, Simon, Neri, Jackson, and Boston must answer Plaintiff's excessive force claim in his First Amended Complaint.

(4) The Clerk of Court must send Plaintiff a service packet including the First Amended Complaint (Doc. # 15), this Order, a Notice of Submission of Documents form, an instruction sheet, and copies of summons and USM-285 forms for Defendants Deegan, Simon, Neri, Jackson, and Boston.

(5) Within 30 days of the date of filing of this Order, Plaintiff must complete and return to the Clerk of Court the Notice of Submission of Documents. Plaintiff must submit with the Notice of Submission of Documents: a copy of the First Amended Complaint for each Defendant, a copy of this Order for each Defendant, a completed summons for each Defendant, and a completed USM-285 for each Defendant.

(6) Plaintiff must not attempt service on Defendants and must not request waiver of service. Once the Clerk of Court has received the Notice of Submission of Documents and the required documents, the Court will direct the United States Marshal to seek waiver of service from each Defendant or serve each Defendant.

(7) If Plaintiff fails to return the Notice of Submission of Documents and the required documents within 30 days of the date of filing of this Order, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice. See Fed.R.Civ.P. 41(b).

INSTRUCTIONS FOR COMPLETING FORM USM-285

After the court has issued an order granting your application to proceed without prepayment of fees and directing that service of process be made by the United States Marshal, you must complete an original USM-285 form for each individual defendant named in your action. Print your name Print the complete case number listed on your complaint Print the name of one defendant on each separate form Print "Summons and Complaint Enter the name and address for service of one defendant on each individual USM-285 form Enter your name and mailing address 1 Enter the number of defendants you have named in your suit Check ONLY if the defendant listed on the form is an entity of the U.S. Government Sign and date the form, check the box marked "PLAINTIFF" and enter your telephone number (if one is available) If you are the plaintiff and are currently incarcerated 1. PLAINTIFF: . 2. COURT CASE NUMBER: . 3. DEFENDANT: . 4. TYPE OF PROCESS: ." 5. SERVE AT: . 6. SEND NOTICE OF SERVICE TO REQUESTER AT: . 7. NUMBER OF PROCESS TO BE SERVED WITH THIS FORM — 285: . 8. NUMBER OF PARTIES TO BE SERVED IN THIS CASE: . 9. CHECK FOR SERVICE ON U.S.A.: . 10. . [] , you must return the completed USM-285 forms to the Clerk's Office at 2500 Tulare Street, Room 1501, Fresno, CA 93721, together with the following: 1. An original Summons for each defendant to be served; 2. A file-endorsed copy of the complaint to be served on each individual defendant; 3. One copy of the complaint for the U.S. Marshal's file. 4. The completed "Notice of Submission of Documents" form enclosed herewith. PLEASE NOTE that only the defendants against whom the court has determined you have a cognizable claim will be served. Eastern California SUMMONS IN A CIVIL CASE YOU ARE HEREBY SUMMONED UNITED STATES DISTRICT COURT District of V. CASE NUMBER: 1: — cv — TO: (Name and address of Defendant) and required to serve on PLAINTIFF'S ATTORNEY (name and address) an answer to the complaint which is served on you with this summons, within 20 days after service of this summons on you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. Any answer that you serve on the parties to this action must be filed with the Clerk of this Court within a reasonable period of time after service.Victoria C. Minor ______________________________ CLERK DATE ______________________________ (By) DEPUTY CLERK RETURN OF SERVICE ¹ (PRINT) Check one box below to indicate appropriate method of service STATEMENT OF SERVICE FEES DECLARATION OF SERVER Signature of Server Address of Server DATE Service of the Summons and complaint was made by me NAME OF SERVER TITLE [] Served personally upon the defendant. Place where served: __________________________________________________________ ____________________________________________________________________________________________________________________ [] Left copies thereof at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein. Name of person with whom the summons and complaint were left: _____________________________________________________ [] Returned unexecuted: ______________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ [] Other (specify): __________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________ TRAVEL SERVICES TOTAL I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Return of Service and Statement of Service Fees is true and correct. Executed on ______________________________ ______________________________________________ Date _______________________________________________ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ) ) _______________________, ) No. 1:___-cv-______________ ) Plaintiff/Petitioner, ) ) NOTICE OF SUBMISSION vs. ) OF DOCUMENTS ) ______________________________________, ) ) Defendant/Respondent. ) ___________________________________________) Plaintiff hereby submits the following documents in compliance with the court's order filed _________________________. ______ completed USM-285 forms ______ copies of the complaint/amended complaint ______ completed Summons forms DATED: _______________ _________________________________ Signature of Plaintiff/Petitioner