Benton v. El Dorado County Sheriff's Department et al

Filing 26

ORDER signed by Magistrate Judge Allison Claire on 09/17/18 GRANTING 17 Motion to Proceed IFP. Within 45 days after service of this order, plaintiff shall: a. complete and return the attached Notice of Election, indicating whether plaintiff inten ds to proceed on his first amended complaint or a proposed second amended complaint; b. if plaintiff seeks to proceed on a proposed second amended complaint, he shall submit the proposed second amended complaint with the notice of election. The foll owing motions are denied as moot: plaintiff's motion for extended time 18 ; plaintiff's motion to proceed in forma pauperis as a jail detainee 22 ; and plaintiff's motion for acceptance of an uncertified in forma pauperis application 23 . The clerk of the court is directed to send plaintiff: a. a copy of this order; b. a copy of plaintiff's first amended complaint 12 ; and c. a copy of this court's screening order 13 .. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRUCE BENTON,

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Plaintiff,

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No. 2:15-cv-0772 AC P

v.

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EL DORADO COUNTY SHERIFF’S
DEPARTMENT, et al.,

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ORDER

Defendants.

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I.

Introduction

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Plaintiff is a former state prisoner and former inmate at the El Dorado County Jail (EDCJ)

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in Placerville, California, who is challenging the conditions of his prior confinement at the

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EDCJ.1 By order filed September 25, 2017, the court accorded plaintiff the option of proceeding

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on his First Amended Complaint (FAC), as construed by the court pursuant to 28 U.S.C. §

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1915A, or submitting a proposed Second Amended Complaint (SAC). See ECF No. 13. The

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court provided guidance to plaintiff concerning how to state potentially cognizable claims against

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additional defendants. Id. at 3-8. The court deferred ruling on plaintiff’s in forma pauperis

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Plaintiff filed his original complaint with three other plaintiffs. See ECF No. 1. The court
severed these actions, ECF No. 5, but found them related, ECF No. 6. Two plaintiffs declined to
pursue their separate actions, which were each dismissed without prejudice. See Case No. 2:15cv-0773 AC P (Anderson), and Case No. 2:15-cv-0774 AC P (Suddeth). Plaintiff Spears
continues to pursue his separate action. See Case No. 2:15-cv-0165 AC P.
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application because his place of incarceration was unclear. Id. at 2.

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Plaintiff elected to proceed on his FAC, on his broad failure-to-protect claim against the

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El Dorado County Sheriff’s Department. However, plaintiff subsequently stated that he would

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prefer submitting a proposed SAC in an attempt to identify the numerous Doe defendants

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referenced in the FAC. Plaintiff will be accorded this option.

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Plaintiff has submitted several in forma pauperis applications reflecting ongoing changes

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in his incarceration status; it appears that plaintiff has occasionally been reincarcerated at the

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EDCJ, but is otherwise homeless and uses a General Delivery address. Plaintiff’s request to

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proceed in forma pauperis premised on his unincarcerated status will be granted.

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II.

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Plaintiff’s most recent change of address indicates that he is no longer incarcerated. See

In Forma Pauperis Application

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ECF No. 24.2 Subsequent communication from plaintiff indicated that he was temporarily

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reincarcerated but anticipated an imminent release, see ECF No. 25, and he did not file a further

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change of address.

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The court has reviewed the in forma pauperis application submitted by plaintiff when he

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was unincarcerated, see ECF No. 17, together with plaintiff’s other filings referencing his

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homeless status, see e.g. ECF No. 21 at 2 (“plaintiff is homeless living in a tent and is displaced

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often losing all of his property upon each arrest (parole violation) including the documents in this

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action”). The court finds that plaintiff has demonstrated he is unable to prepay fees and costs or

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give security for them, as required by 28 U.S.C. § 1915(a)(1). Therefore, plaintiff’s request to

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proceed in forma pauperis will be granted.

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In addition, review of the inmate-locator websites operated by the California Department of
Corrections and Rehabilitation (CDCR) and the EDCJ indicate that plaintiff is not incarcerated
under the authority of either. See http://inmatelocator.cdcr.ca.gov/search.aspx and
http://edcapps.edcgov.us/sheriff/jail/jail_datalist.asp?start=21 See also Fed. R. Evid. 201
(court may take judicial notice of facts that are capable of accurate determination by sources
whose accuracy cannot reasonably be questioned).
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III.

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Plaintiff will be again be given a choice between proceeding on his FAC or submitting a

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Further Election

proposed Second Amended Complaint (SAC).

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As previously explained in the court’s screening order, the FAC states a failure-to-protect

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claim against the El Dorado County Sheriff’s Department based on alleged policy, custom and/or

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practice. If plaintiff wishes to submit a proposed Second Amended Complaint (SAC), in an

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attempt to expand his failure-to-protect claim against individual defendants and/or to add claims

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against specific defendants for deliberate indifference to his serious medical needs, he will need

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to submit the proposed SAC to the court within forty-five (45) days.

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Due to plaintiff’s homeless status and loss of paperwork, the court will send plaintiff,

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together with a copy of this order, copies of his FAC (ECF No. 12), and the court’s prior

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screening order (ECF No. 13).3

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IV.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis as a pro se litigant, ECF No. 17, is

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granted.

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2. Within forty-five (45) days after service of this order, plaintiff shall:

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a. Complete and return the attached Notice of Election, indicating whether
plaintiff intends to proceed on his FAC, or a proposed SAC;

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Conclusion

b. If plaintiff seeks to proceed on a proposed SAC, he shall submit the proposed
SAC with the Notice of Election.

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3. The following motions are denied as moot: plaintiff’s motions for extended time, ECF

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Nos. 18, 21; plaintiff’s motion to proceed in forma pauperis as a jail detainee, ECF No. 22; and

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plaintiff’s motion for acceptance of an uncertified in forma pauperis application, ECF No. 23.

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It appears that the court’s screening order incorrectly identified the date of the inmate assault
incident as August 28, 2014; although this date is provided in the FAC, see ECF No. 12 at 7:12,
the correct date appears to be April 28, 2014, see id. at 7:22 and 9:2; see also ECF No. 1.
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4. The Clerk of Court is directed to send plaintiff: (a) a copy of this order; (b) a copy of

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plaintiff’s FAC, ECF No. 12 (14 pages); and (c) a copy of this court’s screening order, ECF No.

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13 (11 pages).

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DATED: September 17, 2018

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRUCE BENTON,

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Plaintiff,

No. 2:15-cv-0772 AC P

v.
EL DORADO COUNTY SHERIFF’S
DEPARTMENT, et al.,

NOTICE OF ELECTION

Defendants.

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In compliance with the court’s order filed ___________________, plaintiff elects to:

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_____ Proceed on his First Amended Complaint (FAC) against
defendant El Dorado County Sheriff’s Department;

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OR

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_____ Proceed on a proposed Second Amended Complaint (SAC),
submitted herewith.

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____________________________
Date

______________________________
Plaintiff

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