921 F. 2d 280 - Miller v. Rowland

MEMORANDUM**

John Laurence Miller, a California state prisoner, appeals pro se the district court's summary judgment dismissal of that portion of his civil rights action seeking declaratory and injunctive relief. We affirm.

Miller, while an inmate at the San Quentin State Prison, was shot after an altercation with a prison guard. Miller filed a 42 U.S.C. Sec. 1983 action alleging the shooting constituted excessive force in violation of his eighth amendment rights because he was unarmed and acting in self-defense at the time of the incident. Miller seeks damages from all defendants except James Rowland, who is sued in his individual capacity as Director of the California Department of Corrections for injunctive and declaratory relief only.1 Miller seeks an order enjoining Rowland and his employees from doing anything to endanger Miller or his witnesses, from harassing Miller and his witnesses, from interfering with Miller's prosecution of this lawsuit, and from reading Miller's legal mail. Miller also sought an order requiring Rowland to expunge from Miller's file the Rules Violation Report which was generated as a result of the shooting incident.

Rowland filed a summary judgment motion on March 3, 1989, contending that no case or controversy existed between Miller and Rowland. Despite granting Miller two 30-day extensions in which to respond, the district court never received an opposition to the summary judgment motion. The district court granted Rowland's summary judgment motion on September 7, 1989, from which Miller now appeals.

Based on the uncontroverted state of the record concerning Rowland's summary judgment motion, Miller's file was expunged and there was nothing to show that Miller ever had suffered or ever would suffer any interference from Rowland in the prosecution of his claims against the remaining defendants. Accordingly, there was no error in the district court's ruling. See Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).

AFFIRMED.