Opinion
No. CIV S-04-1368 GEB CMK P.
October 8, 2008
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's third amended complaint (Doc. 91). The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a).
Plaintiff alleges he has suffered retaliation and a violation of his due process rights. Pursuant to this court's previous orders, this case is limited to plaintiff's First and Fourteenth Amendment claims regarding his retention in administrative segregation. The defendants' motion to dismiss was granted. Plaintiff was provided an opportunity to file an amended complaint in an attempt to link his claim to defendants Wilson and Morrow, and to state a claim against the supervisory defendants Pliler, Stratton and Stiles as well as defendant Ventimiglia. Plaintiff's third amended complaint appears to have done so. He claims he personally notified defendant Pliler regarding the alleged constitutional violations. Therefore, he argues, defendant Pliler had actual knowledge of the violations and failed to act to prevent them. Plaintiff alleges that defendants Stratton and Stiles, in addition to several other individual defendants, were directly involved in the decision to retain him in administrative segregation as they were on the Institutional Classification Committee. Similarly, plaintiff has stated a claim as against Wilson, Morrow and Ventimiglia for retaliation and due process violations.
The third amended complaint appears to state a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). If the allegations are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. Defendants Rosario, Walker, Mayfield, Vance, Minni, and Ventimiglia have already appeared in this action. Accordingly, these defendants will be directed to file a response to the third amended complaint.
However, defendants Pliler, Stratton, Stiles, Morrow, and Wilson have not been served. The court finds that service is appropriate for these defendants and will direct service by the U.S. Marshal without pre-payment of costs. Plaintiff is informed, however, that this action cannot proceed further against these defendants until plaintiff complies with this order. Plaintiff is warned that failure to comply with this order may result in dismissal of the action. See Local Rule 11-110.
Accordingly, IT IS HEREBY ORDERED that:
1. The court authorizes service on the following additional defendants: Pliler, Stratton, Stiles, Wilson, and Morrow.
2. The Clerk of the Court shall send plaintiff one USM-285 form for each of the defendants identified above, one summons, an instruction sheet, and a copy of the third amended complaint;
3. Within 30 days of the date of service 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. Five completed USM-285 form(s); and
d. Six copies of the endorsed third amended complaint; and
4. Defendants Rosario, Walker, Mayfield, Vance, Minni, and Ventimiglia are directed to file a response to the third amended complaint within 60 days of service of this order.