Opinion
No. CIV S-06-0207-FCD-CMK-P.
September 5, 2006
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 complaint (Doc. 1). 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 names the following as defendants: Rod Hickman, Terry Farmer, Bruce Mitchell, Tom Carey, Jeanne Woodford, Margarita Perez, and Arnold Schwarzenegger. Plaintiff challenges the California Board of Prison Terms' denial of parole. Plaintiff, however, clearly states that he is not challenging the fact or duration of his confinement. Specifically, plaintiff states: "Plaintiff does not contest not challenge the duration of his imprisonment. And declares that victory in this lawsuit will only grant him another opportunity to enter the door of the board of prison terms . . ." Plaintiff summarizes the nature of this suit in his complaint as follows:
This case is about the persistent pattern, failure of the California Board of Prison Terms . . . to apply only constitutional criteria, that has been legal approved and adopted pursuant to the California Government Administrative Procedures Act . . . when determining plaintiff's eligibility for parole.
And this case is also about the persistent pattern of psychological retaliation which has chilling effects from the amount of pressure and "coercion" repeatedly since 1997 to 2005 on plaintiff and possibly "third parties constitutionally protected United States First Amendment rights" and their freedom of speech and freedom to petition the government without fear of retaliation and irreparable harm. (emphasis in original).
The 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. See Wilkinson v. Dotson, 544 U.S. 74 (2005). The court, therefore, finds that service is appropriate and will direct service by the U.S. Marshal without pre-payment of costs. Plaintiff is informed, however, that this action cannot proceed further 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.
The court notes that, according to plaintiff's complaint, plaintiff may not have exhausted his administrative remedies. However, because exhaustion is not a jurisdictional requirement for bringing suit, see Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999), and because failure to exhaust is an affirmative defense which can only be raised by defendants, see Wyatt v. Terhune, 280 F.3d 1238, 1245-46 (9th Cir. 2002), sua sponte dismissal at this time for failure to exhaust is not appropriate.
Accordingly, IT IS HEREBY ORDERED that:
1. Service is appropriate for the following defendant(s):
HICKMAN, FARMER, MITCHELL, CAREY, WOODFORD,
PEREZ, and SCHWARZENEGGER;
2. The Clerk of the Court shall send plaintiff one USM-285 form for each defendant identified above, one summons, an instruction sheet, and a copy of the complaint (Doc. 1); and
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. Eight completed USM-285 form(s); and
d. Nine copies of the endorsed complaint.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order:
1 completed summons form; ____ completed USM-285 form(s); and ____ copies of the complaint.
DATED: __________________ ___________________________________ Plaintiff