Colon v. Zia, et al.

Filing 18

ORDER Denying 17 Plaintiff's Motion for Leave to Amend the Complaint; ORDER Dismissing Defendant Zia from this Action for Failure to Effect Service; ORDER Dismissing Case; ORDER Directing Clerk to Close Case, signed by Magistrate Judge Gary S. Austin on 12/2/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANCISCO COLON,

1:10-cv-01642-GSA-PC

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ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND THE COMPLAINT
(Doc. 17. )

Plaintiff,
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v.
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ORDER DISMISSING DEFENDANT ZIA
FROM THIS ACTION FOR FAILURE TO
EFFECT SERVICE

DR. ZIA, et al.,
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Defendants.

ORDER DISMISSING CASE

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ORDER DIRECTING CLERK TO CLOSE
CASE

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/

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I.

RELEVANT PROCEDURAL HISTORY

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Francisco Colon (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing
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this action on September 10, 2010. (Doc. 1.) On October 6, 2010, Plaintiff consented to Magistrate
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Judge jurisdiction in this action, and no other parties have made an appearance. (Doc. 5.) Therefore,
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pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the
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undersigned shall conduct any and all proceedings in the case until such time as reassignment to a
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District Judge is required. Local Rule Appendix A(k)(3).
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Plaintiff filed the First Amended Complaint on January 13, 2011.1 (Doc. 9.) The Court

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screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A and issued an order on April

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4, 2011, finding that Plaintiff stated a cognizable claim against defendant Dr. Zia (“Defendant”), for

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inadequate dental care in violation of the Eighth Amendment. (Doc. 10.) On April 18, 2011, the

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Court directed the United States Marshal (“Marshal”) to initiate service of process upon Defendant.

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(Doc. 12.) On May 19, 2011, the Marshal filed a return of service unexecuted, indicating the

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Marshal was unable to locate Defendant for service of process. (Doc. 13.) On September 16, 2011,

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the Court directed the Marshal to initiate re-service upon Defendant using the assistance of the Legal

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Affairs Division of the California Department of Corrections and Rehabilitation (“CDCR”) to locate

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and serve Defendant. (Doc. 14.) On October 6, 2011, the Marshal filed a return of service

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unexecuted, indicating the Marshal was unable to locate Defendant for service of process with the

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assistance of the Legal Affairs Division. (Doc. 15.) On October 17, 2011, the Court issued an order

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to show cause, requiring Plaintiff to respond in writing why Defendant Zia should not be dismissed

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for failure to effect service. (Doc. 16.) On November 16, 2011, Plaintiff filed a response to the

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Court’s order to show cause and a motion for leave to amend. (Doc. 17.)

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II.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s

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pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,

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a party may amend only by leave of the court or by written consent of the adverse party, and leave

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shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, Plaintiff has

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previously amended the complaint. Therefore, Plaintiff may not amend the complaint without leave

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of court.

MOTION FOR LEAVE TO AMEND – RULE 15

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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so

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requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)

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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the

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Plaintiff named defendants Dr. Zia, Dr. Malan, Dr. Lindquist, and Does 1-10 in the original Complaint but
omitted Dr. Malan, Dr. Lindquist, and the Doe defendants in the First Amended Complaint.

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue

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delay in the litigation; or (4) is futile.” Id.

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Plaintiff seeks leave to file a Second Amended Complaint for the purpose of adding new

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defendants, including members of the Dental Authorization Review Committee, on the theory of

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respondeat superior, for their responsibility for dental policies and procedures, training, and

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supervision of the dental delivery system. Plaintiff also seeks to add the appeals staff “and other

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involved parties” as defendants. Motion, Doc. 17 at 3:11-17.

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Leave to amend may be denied if the proposed amendment is futile or would be subject to

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dismissal. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). However, before discovery is

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complete, a proposed amendment is "futile" only if no set of facts can be proved under the

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amendment that would constitute a valid claim or defense. Miller v. Rykoff-Sexton, Inc., 845 F.2d

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209, 214 (9th Cir. 1988).

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Amendment of the complaint to add defendants on a theory of respondeat superior would

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be futile, because liability may not be imposed on supervisory personnel under section 1983 on the

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theory of respondeat superior. Each defendant is only liable for his or her own misconduct. Iqbal,

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129 S.Ct. at 1948-49; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A supervisor

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may be held liable only if he or she “participated in or directed the violations, or knew of the

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violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989);

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accord Starr v. Baca, 633 F.3d 1191, 1197 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570

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(9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Therefore, to the extent that

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Plaintiff seeks to amend the complaint to impose liability upon new defendants on the theory of

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respondeat superior, the proposed amendment is futile.

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With respect to Plaintiff’s proposal to add the appeals staff as defendants, Plaintiff is advised

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that defendants’ actions in responding to Plaintiff’s appeals, alone, cannot give rise to any claims for

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relief under section 1983 for violation of due process. “[A prison] grievance procedure is a

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procedural right only, it does not confer any substantive right upon the inmates.” Buckley v. Barlow,

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997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982));
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see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of

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appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641,

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647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann

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v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty

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interest requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568

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F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a

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prisoner’s administrative appeal cannot serve as the basis for liability under a section 1983 action.

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Buckley, 997 F.2d at 495. Thus, since he has neither a liberty interest, nor a substantive right in

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inmate appeals, Plaintiff cannot state a cognizable claim against new defendants for the processing

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and/or reviewing of his 602 inmate appeals.

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Plaintiff also seeks to add “other involved parties” as defendants. Motion, Doc. 17 at 3:15-

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17. Plaintiff has not sufficiently identified these proposed defendants or described the nature of his

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claims against them. Without more, the Court is unable to determine whether Plaintiff is able to

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state a valid claim or defense with the addition of these parties.

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Based on the foregoing, the Court finds that no set of facts can be proved under Plaintiff's

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proposed amendment that would constitute a valid claim or defense. Therefore, Plaintiff's proposed

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amendment is futile, and his motion to amend shall be denied.

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III.

RESPONSE TO ORDER TO SHOW CAUSE

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Plaintiff argues that Defendant Dr. Zia should not be dismissed from this action for failure

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to effect service because the Marshal has not conducted a diligent search to locate Defendant Zia for

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service of process. Plaintiff requests the Court to direct the Marshal to investigate records of the

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Department of Justice, Federal Bureau of Investigation, CDCR, and State of California to find

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identifying information to locate and serve Defendant Zia.

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Rule 4

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Pursuant to Rule 4(m),

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If a defendant is not served within 120 days after the complaint is filed, the court –
on motion or on its own after notice to the plaintiff – must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.

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But if the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period.

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Fed. R. Civ. P. 4(m). In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon
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order of the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(2). “‘[A]n
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incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for
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service of the summons and complaint and ... should not be penalized by having his action dismissed
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for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his
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duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912
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F.2d 270, 275 (9th Cir. 1990)), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472
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(1995). “So long as the prisoner has furnished the information necessary to identify the defendant,
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the marshal’s failure to effect service is ‘automatically good cause . . . .’” Walker, 14 F.3d at 1422
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(quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990)). However, where a pro se
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plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the
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summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is appropriate.
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Walker, 14 F.3d at 1421-22.
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The Marshal has made two attempts in this action to locate and serve defendant Dr. Zia,
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without success. In the first attempt, the Marshal used the information provided by Plaintiff, which
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was insufficient. During the second attempt, in compliance with the Court’s order, the Marshal
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enlisted the assistance of the Legal Affairs Division of the CDCR, and attempted to serve Dr. Zia
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at another address, without success. The Marshal has thus performed his duties under Rule 4 in
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attempting to locate and serve Defendant Dr. Zia. The Marshal is not required to make a search of
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every government database to identify and locate a defendant. Plaintiff is responsible for providing
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the Marshal with sufficient information to serve the defendants in his case. As noted above, where
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a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect
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service of the summons and complaint, the Court’s sua sponte dismissal of the unserved defendants
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is appropriate. Walker, 14 F.3d at 1421-22.
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Plaintiff was forewarned in the Court’s order to show cause that if he was unable to provide
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the Marshal with additional information, Defendant Zia would be dismissed from the action, which
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would result in the dismissal of this action in its entirety. (Doc. 16 at 3:13-14.) Plaintiff has not

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provided any additional information to assist the Marshal in locating and serving Defendant Zia.

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Therefore, Defendant Zia shall be dismissed from this action for failure to effect service, and this

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action shall be dismissed in its entirety.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for leave to amend the complaint is DENIED;

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2.

Defendant Dr. Zia is DISMISSED from this action for failure to effect service,

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pursuant to Rule 4 of the Federal Rules of Civil Procedure;
3.

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This action is DISMISSED in its entirety for Plaintiff’s failure to effect service upon
the sole defendant to this action; and

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The Clerk of Court is DIRECTED to close this case.

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IT IS SO ORDERED.
Dated:
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December 2, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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