Parks v. Tait et al

Filing 16

ORDER directing U.S. Marshal to effect service of First Amended Complaint signed by District Judge Marilyn L. Huff on 4/6/2009. (Service Documents forwarded to Plaintiff as directed.).(Lundstrom, T)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHARLES AUSTIN PARKS, CDCR #K-72151, Civil No. 08-1031 H (JMA) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION Plaintiff, vs. R. TAIT, et al., Defendants. ORDER DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. 1915(d) I. PROCEDURAL HISTORY On July 18, 2008, Plaintiff, an inmate currently incarcerated at California State Prison, Sacramento located in Represa, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. 1983. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis -108cv1031 K:\COMMON\EVERYONE\_EFILE-PROSE\H\08cv1031-Serve FAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ("IFP") pursuant to 28 U.S.C. 1915(a) [Doc. No. 4]. The Court granted Plaintiff's Motion to Proceed IFP on August 1, 2008 [Doc. No. 6]. On November 25, 2008, this matter was reassigned to District Judge Marilyn L. Huff for all further proceedings [Doc. No. 10]. On December 30, 2008, the Court dismissed Plaintiff's First Amended Complaint for failing to state a claim pursuant to 28 U.S.C. 1915(e)(2). See Dec. 30, 2008 Order at 7. Plaintiff was permitted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id.. After receiving an extension of time to file his Amended Complaint, Plaintiff filed his First Amended Complaint ("FAC") on March 23, 2009. II. SCREENING PURSUANT TO 28 U.S.C. 1915(e)(2) & 1915A(b) The Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) ( 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) ( 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 1915A). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a -208cv1031 K:\COMMON\EVERYONE\_EFILE-PROSE\H\08cv1031-Serve FAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pro se civil rights complaint, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id. Here, the Court finds that the allegations in Plaintiff's First Amended Complaint are sufficient to survive the sua sponte screening required by 28 U.S.C. 1915(e)(2) and 1915A(b). Therefore, Plaintiff is entitled to U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in [IFP] cases."); FED.R.CIV.P. 4(c)(3) (providing that "service be effected by a United States marshal, deputy Untied States marshal, or other officer specially appointed by the court ... when the plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. 1915."). Plaintiff is cautioned, however, that "the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring." Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). III. CONCLUSION AND ORDER Good cause appearing, IT IS HEREBY ORDERED that: 1. The Clerk shall issue a summons as to Plaintiff's First Amended Complaint [Doc. No. 15] upon Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order and certified copies of his First Amended Complaint and the summons for purposes of serving each Defendant. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to return them to the United States Marshal. Thereafter, the U.S. Marshal shall serve a copy of the First Amended Complaint and summons upon each Defendant as directed by Plaintiff on each Form 285. All costs of service shall be advanced by the United States. See 28 U.S.C. 1915(d); FED.R.CIV.P. 4(c)(3). /// -308cv1031 K:\COMMON\EVERYONE\_EFILE-PROSE\H\08cv1031-Serve FAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Plaintiff shall serve upon Defendants or, if appearance has been entered by counsel, upon Defendants' counsel, a copy of every further pleading or other document submitted for consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of any document was served on Defendants, or counsel for Defendants, and the date of service. Any paper received by the Court which has not been filed with the Clerk or which fails to include a Certificate of Service will be disregarded. 3. Prior to filing any motion, Counsel for Defendants shall contact the chambers of the assigned judge to obtain a hearing date and time. DATED: April 6, 2009 ____________________________________ HON. MARILYN L. HUFF United States District Judge K:\COMMON\EVERYONE\_EFILE-PROSE\H\08cv1031-Serve FAC -4- 08cv1031

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