Rupe v. Cate et al

Filing 103

ORDER signed by District Judge Edward F. Shea on 1/24/12. The Clerk shall immediately send Plaintiff a USM-285 form for each Defendant to be served, as well as a summons, instruction sheet, and a copy the second Amended Complaint 101 , Within forty five (45) days from the date of this order, Plaintiff shall complete the attached Notice of Submission of Documents. Plaintiff's Motion to Strike and Reply to Defendant's Opposition to Motion for Default Judgment 95 is DENIED as MOOT. The District Court Executive is directed to enter this order and provide a copy to Plaintiff, Counsel, and the USM. (Mena-Sanchez, L)

1
2
3
4
5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

6
7
8

PAUL ANTHONY RUPE,
Plaintiff,

9
v.

10
11
12
13
14
15
16
17
18

NO. CV-08-2454-EFS (PC)

M. CATE, R.J. SUBIA, M. MARTEL,
D. LONG, W. KNIPP, G. MACHADO,
R.M. KUDLATA, A.L. CHAMBERLAIN,
V. BUENO, B. BUENO, A. GREEN,
K. RUTHERFORD, J. TEXEIRA, L.
MARTINEZ, D. BAPTISTA, S.
BARNHAM, KURIC, S. MUHAMMED,
TAKEHARI, LOCKHART, J. BURKARD,
M. LACKNER, B. RATHJEN, M.
BENNETT, L.B. REAVES, M. ALLEN,
R. NAKANOTO, B.M. CASH, C.
FORTSON, J. SEBOK, A. OMEIRA,
BOWEN, K. BRADFORD, M.
BEUCHTER, P. VANNI, L. RUSHING,
L. JACKSON, and D.J. WILLIAMS,

ORDER SCREENING SECOND AMENDED
COMPLAINT AND REQUIRING
PLAINTIFF TO SUBMIT SERVICERELATED DOCUMENTS

Defendants.

19
20
21

Before the Court is pro se state prisoner Plaintiff Paul Anthony

22

Rupe’s Second Amended Complaint.

23

claims against a total of thirty-eight Defendants, alleging numerous

24

violations of his federal statutory and constitutional rights.

25

accordance with the Court’s November 21, 2011 Order, ECF No. 100, the

26

Court screens Mr. Rupe’s Second Amended Complaint pursuant to 28 U.S.C.

ORDER * 1

ECF No. 101.

Mr. Rupe asserts nine

In

1

§ 1915A.

For the reasons discussed below, the Court dismisses aspects

2

of Plaintiff’s Second Amended Complaint, and orders Plaintiff to prepare

3

and return service documents so that the U.S. Marshals may serve the

4

complaint on all heretofore-unserved named Defendants.

5

I.

Mr. Rupe’s Second Amended Complaint

6

Under the Prisoner Litigation Reform Act of 1995, the Court is

7

required

to

screen

prisoner

complaints

seeking

relief

against

a

8

governmental entity or an officer or employee of a governmental entity.

9

28 U.S.C. § 1915A(a).

Claims that are legally frivolous or malicious,

10

claims that fail to state a claim upon which relief may be granted, and

11

claims that seek monetary relief from a defendant who is immune from such

12

relief are properly dismissed.

Id. §§ 1915A(b)(1), (2) & 1915(e)(2).

13

After review, the Court finds that the complaint as a whole states

14

plausible constitutional claims under 42 U.S.C. § 1983, as well as

15

plausible claims under the Religious Land Use and Institutionalized

16

Persons Act of 2000, 42 U.S.C. § 2000cc-1 et. seq. (RLUIPA).

17

several of Mr. Rupe’s claims fail to state a claim upon which relief can

18

be granted and must be dismissed.

19

Several

of

Mr.

Rupe’s

claims

seek

injunctive

relief

However,

against

20

Defendant Martel, who is the warden of Mule Creek State Prison (MCSP),

21

and one of Mr. Rupe’s claims seeks injunctive relief against Defendants

22

Rathjen, Bennett, Reaves, and Nakanoto, who are correctional counselors

23

at MCSP (Defendant Nakanoto is alleged to be a classification services

24

representative for the California Department of Corrections).

25

in the Court’s February 1, 2010 Order, Mr. Rupe’s claims for injunctive

26

relief

against

ORDER * 2

officials

at

MSCP

are

moot

because

Mr.

As noted

Rupe

was

1

transferred

2

expectation that he will be transferred to that facility again.

3

No. 48 at 8-9; see also Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir.

4

1995) (finding prisoner claim for injunctive relief moot upon prisoner’s

5

transfer to new facility).

6

as they relate to Defendant Martel: Mr. Rupe’s First Amendment Free

7

Exercise claim, Mr. Rupe’s Fourteenth Amendment Equal Protection claim,

8

and Mr. Rupe’s RLUIPA reasonable accommodation claim.

9

Rupe’s Eighth Amendment claim for injunctive relief is dismissed as it

10
11

from

MCSP

during

June

2009

and

he

has

no

reasonable
See ECF

As such, the following claims are dismissed

Additionally, Mr.

relates to Defendants Rathjen, Bennett, Reaves, and Nakanoto.
Mr. Rupe’s remaining claims state plausible claims for relief and

12

are not dismissed.

Nothing in this Order, however, should be read to

13

preclude or discourage Defendants from filing a motion to dismiss or

14

motion for summary judgment with regard to any or all of Mr. Rupe’s

15

remaining claims.

16

II.

Service of Defendants Martinez, Jackson, and Williams

17

Of the thirty-eight Defendants named in Mr. Rupe’s Second Amended

18

Complaint, the following thirty-five have previously been served: M.

19

Cate, R.J. Subia, M. Martel, D. Long, W. Knipp, G. Machado, R.M. Kudlata,

20

A.L. Chamberlain, V. Bueno, B. Bueno, A. Green, K. Rutherford, J.

21

Texeira, D. Baptista, S. Barnham, Kuric, S. Muhammed, Takehari, Lockhart,

22

J. Burkard, M. Lackner, B. Rathjen, M. Bennett, L.B. Reaves, M. Allen,

23

R. Nakanoto, B.M. Cash, C. Fortson, J. Sebok, A. Omeira, Bowen, K.

24

Bradford, M. Beuchter, P. Vanni, and L. Rushing.

25

not been served: Defendant L. Martinez was previously named in this

26

ORDER * 3

Three Defendants have

1

lawsuit but had not been served, see ECF No. 98, and Defendants L.

2

Jackson and D.J. Williams have not previously been named.

3

Accordingly, the Court orders Mr. Rupe to prepare and return service

4

documents for L. Martinez, L. Jackson, and D.J. Williams so that the U.S.

5

Marshals may serve the Second Amended Complaint on these heretofore-

6

unserved Defendants.

7

documents,

8

Documents, within forty-five (45) days of the entry of this Order.

as

well

Mr. Rupe must prepare and return the service
as

file

the

attached

Notice

of

Submission

of

III. Mr. Rupe’s Motion to Extend Discovery

9
10

Also before the Court is Mr. Rupe’s Motion to Extend Discovery for

11

90 Days After the Answering of the Second Amended Complaint.

ECF No.

12

102.

13

cutoff of February 20, 2012, in light of his Second Amended Complaint,

14

ECF No. 101, which was filed on December 14, 2011.

15

Second Amended Complaint names two additional Defendants, the discovery

16

stage of this case must be re-opened. Accordingly, the Court strikes the

17

currently-set discovery cutoff of February 20, 2012.

18

have filed an answer or answers to Mr. Rupe’s Second Amended Complaint,

19

the Court will issue a scheduling order setting pre-trial deadlines, a

20

pretrial conference date, and a trial date.

Mr. Rupe asks the Court to extend the currently-set discovery

Because Mr. Rupe’s

Once Defendants

21

IV.

Plaintiff’s Motion to Strike

22

Finally, it has come to the Court’s attention that Mr. Rupe’s

23

October

11,

24

Opposition to Motion for Default Judgment, ECF No. 95, is still pending.

25

The Court had construed this motion as a reply in addressing Mr. Rupe’s

26

Motion for Default Judgment, ECF No. 92, which the Court denied in its

ORDER * 4

2011-filed

Motion

to

Strike

and

Reply

to

Defendants’

1

October 13, 2011 Order Addressing Plaintiff’s Motions, ECF No. 96.

2

Accordingly, Mr. Rupe’s motion to strike is denied as moot.

3

V.

Conclusion

4

For the reasons discussed above, several of Mr. Rupe’s claims for

5

injunctive relief are dismissed.

Mr. Rupe is directed to prepare and

6

return service documents for Defendants Martinez, Jackson, and Williams

7

within forty-five (45) days.

8

and filed the attached Notice of Submission of Documents, the Court will

9

direct the U.S. Marshals to serve the Second Amended Complaint on those

When Mr. Rupe has returned these documents

10

three Defendants.1

11

stay on Defendants’ responsibility to answer Mr. Rupe’s complaint, see

12

ECF No. 100, and will include specific instructions for answering the

13

complaint.

14

Defendants do not need to respond to the following dismissed claims: Mr.

15

Rupe’s First Amendment Free Exercise claim as it relates to Defendant

16

Martel, Mr. Rupe’s Fourteenth Amendment Equal Protection claim as it

17

relates to Defendant Martel, Mr. Rupe’s RLUIPA reasonable accommodation

18

claim as it relates to Defendant Martel, and Mr. Rupe’s Eighth Amendment

19

claim for injunctive relief as it relates to Defendants Rathjen, Bennett,

20

Reaves, and Nakanoto.

21

When

The Court’s Order directing service will lift the

answering

Plaintiffs’

Second

Amended

Complaint,

Additionally, the Court strikes the February 20, 2012 discovery

22

cutoff and denies Mr. Rupe’s motion to strike as moot.

23

//

24

/

25
26

1

The thirty-five previously-served Defendants have already appeared

and thus receive electronic service of filings in this matter.
ORDER * 5

1

For the reasons discussed above, IT IS HEREBY ORDERED:

2

1.

3

Service

is

appropriate

for

all

heretofore-unserved

named

Defendants (L. Martinez, L. Jackson, and D.J. Williams).

4

2.

The Clerk of Court shall immediately send Plaintiff a USM-285

5

form for each Defendant to be served, as well as a summons, instruction

6

sheet, and a copy of the Second Amended Complaint, ECF No. 101.

7

3.

Within forty-five (45) days from the date of this Order,

8

Plaintiff shall complete the attached Notice of Submission of Documents

9

and submit the following documents to the Court:

10

a.

The completed Notice of Submission of Documents;

11

b.

One completed summons;

12

c.

One completed USM-285 form for each Defendant listed in

13

paragraph 1 above; and

14

d.

15

Three (3) copies of the Second Amended Complaint, ECF No.
101.

16

4.

17

request

18

documents, the Court will issue a separate Order requiring the U.S.

19

Marshals to serve each Defendant listed in paragraph 1.

20

5.

Plaintiff need not attempt service on Defendants and need not
waiver

of

service.

After

receiving

the

above-described

The Court cautions Plaintiff that failing to submit the above-

21

described documents within forty-five (45) days will be construed as

22

permission to dismiss this lawsuit in regard to the three above-named

23

Defendants under Federal Rule of Civil Procedure 41.

24

6.

Plaintiff’s Motion to Extend Discovery for 90 Days After the

25

Answering of the Second Amended Complaint, ECF No. 102, is GRANTED in

26

part.

The currently-set February 20, 2012 discovery cutoff is STRICKEN.

ORDER * 6

1
2

7. Plaintiff’s Motion to Strike and Reply to Defendants’ Opposition
to Motion for Default Judgment, ECF No. 95, is DENIED as moot.

3

IT IS SO ORDERED. The District Court Executive is directed to enter

4

this Order and provide a copy to Plaintiff, counsel, and the U.S.

5

Marshals Service.

6

DATED this

24th

day of January 2012.

7
8
s/ Edward F. Shea
EDWARD F. SHEA
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

C:\WINDOWS\Temp\notes101AA1\ED.CA.08.2454.screen.lc2.wpd

ORDER * 7

1
2
3
4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

5
6
7

PAUL ANTHONY RUPE,
Plaintiff,

8
9
10
11
12
13
14
15
16
17
18
19
20

NO. CV-08-2454-EFS (PC)

v.
M. CATE, R.J. SUBIA, M. MARTEL,
D. LONG, W. KNIPP, G. MACHADO,
R.M. KUDLATA, A.L. CHAMBERLAIN,
V. BUENO, B. BUENO, A. GREEN,
K. RUTHERFORD, J. TEXEIRA, L.
MARTINEZ, D. BAPTISTA, S.
BARNHAM, KURIC, S. MUHAMMED,
TAKEHARI, LOCKHART, J. BURKARD,
M. LACKNER, B. RATHJEN, M.
BENNETT, L.B. REAVES, M. ALLEN,
R. NAKANOTO, B.M. CASH, C.
FORTSON, J. SEBOK, A. OMEIRA,
BOWEN, K. BRADFORD, M.
BEUCHTER, P. VANNI, L. RUSHING,
L. JACKSON, and D.J. WILLIAMS,

NOTICE OF SUBMISSION OF
DOCUMENTS

Defendants.
Plaintiff hereby submits the following documents in compliance with
the Court's Order filed

:

21

completed summons form;

22

completed USM-285 forms; and

23

copies of the Second Amended Complaint, ECF No. 101.

24

DATED: ___________

25
26

Paul Anthony Rupe
Plaintiff
NOTICE OF SUBMISSION OF DOCUMENTS ~ 1