Kimpel v. California Department of Corrections et al

Filing 7

ORDER Dismissing Defendant California Department of Corrections and Directing U.S. Marshal to Effect Service of Plaintiff's First Amended Complaint Pursuant to Fed.R.Civ.P. 4(c)(3) and 28 U.S.C. § 1915(d). Signed by Judge Larry Alan Burns on 2/20/09. (All non-registered users served via U.S. Mail Service, IFP Package sent).(pdc) (jrl).

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 I. P r o c ed u r a l History O n September 22, 2008, Plaintiff, Jay G. Kimpel, an inmate currently incarcerated at the R .J . Donovan Correctional Facility located in San Diego, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff did not prepay the civil f ilin g fee required by 28 U.S.C. § 1914(a), but instead submitted a Motion to Proceed In Forma P a u p e ris ("IFP") pursuant to 28 U.S.C. § 1915(a). O n November 26, 2008, the Court granted Plaintiff's Motion to Proceed IFP but s im u lta n e o u s ly sua sponte dismissed his Complaint for failing to state a claim pursuant to 28
K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1734-Serve FAC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
J A Y G. KIMPEL, C D C R #V-01627, P la in tif f , Civil No. ORDER: (1 ) DISMISSING DEFENDANT C A L I F O R N IA DEPARTMENT OF C O R R E C T IO N S AND R O B E R T WALKER, P. JAYASUNDARA, Defendants. (2 ) DIRECTING U.S. MARSHAL TO E F F E C T SERVICE OF P L A IN T I F F 'S FIRST AMENDED C O M P L A IN T PURSUANT TO F ED.R .C IV.P . 4(c)(3) AND 28 U.S.C. § 1915(d) 08-1734 LAB (JMA)

vs.

1

08cv1734

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

U .S .C . § 1915(e)(2)(B) & § 1915A(b). See Nov. 26, 2008 Order at 6-7. Nonetheless, the Court g ra n te d Plaintiff leave to file a First Amended Complaint and cautioned him that any claims not re-a lle g e d and Defendants not named in the First Amended Complaint would be deemed waived. Id . (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). On February 11, 2009, Plaintiff filed his First Amended Complaint ("FAC") [Doc. No. 5 ]. In his First Amended Complaint, Plaintiff does not rename the California Department of C o rre c tio n s as a Defendant. Accordingly, the California Department of Corrections is

D I S M I S S E D from this action. See King, 814 F.2d at 567. II. S u a Sponte Screening per 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1) A s the Court stated in its previous Order, notwithstanding IFP status or the payment of a n y partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds " f riv o lo u s , malicious, failing to state a claim upon which relief may be granted, or seeking m o n et ary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); C a lh o u n v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2 0 0 0 ) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to s u a sponte dismiss an in forma pauperis complaint that fails to state a claim). Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte d i sm is s a l of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as a m e n d e d , 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to th e IFP provisions of section 1915 make and rule on its own motion to dismiss before directing th e U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(2). See Calhoun, 254 F.3d at 8 4 5 ; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1 9 9 7 ) (stating that sua sponte screening pursuant to § 1915 should occur "before service of p roc ess is made on the opposing parties"). /// /// 2

K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1734-Serve FAC

08cv1734

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

" [ W ]h e n determining whether a complaint states a claim, a court must accept as true all a lle g a tio n s of material fact and must construe those facts in the light most favorable to the p l a in t if f . " Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 (no tin g that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"); A n d r e w s, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se's p le a d in g s , see Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), w h ic h is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9 th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the c o u rt may not "supply essential elements of claims that were not initially pled." Ivey v. Board o f Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). H e re , the Court finds that Plaintiff's claims in his First Amended Complaint survive the su a sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and that Plaintiff is th e re f o re 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 d u ties in [IFP] cases."); FED.R.CIV.P. 4(c)(3) (providing that "service be effected by a United S tates 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."). P lain tiff is cautioned, however, that "the sua sponte screening and dismissal procedure is c u m u lativ e of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] m a y choose to bring." Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). III. C o n c lu s io n and Order Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. D e fe n d a n t California Department of Corrections is DISMISSED from this action.

S e e King, 814 F.2d at 567. IT IS FURTHER ORDERED that: 2. T h e Clerk shall issue a summons upon the remaining Defendants and forward it

to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, th e Clerk shall provide Plaintiff with a certified copy of this Order, and certified copies of his 3

K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1734-Serve FAC

08cv1734

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

F ir st Amended Complaint and the summons for purposes of serving each of these Defendants. U p o n receipt of this "IFP Package," Plaintiff is directed to complete the Form 285s as c o m p le te ly and accurately as possible, and to return them to the United States Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP package. Thereafter, th e U.S. Marshal shall serve a copy of the First Amended Complaint and summons upon each D e fe n d a n t as directed by Plaintiff on each Form 285. All costs of service shall be advanced by th e United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 3. D efe n d an ts are thereafter ORDERED to reply to the First Amended Complaint

w ith in the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). S e e 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to "waive the rig h t to reply to any action brought by a prisoner confined in any jail, prison, or other c o rre c tio n a l facility under section 1983," once the Court has conducted its sua sponte screening p u rsu a n t to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary d e ter m in a tion based on the face on the pleading alone that Plaintiff has a "reasonable o p p o rtu n ity to prevail on the merits," Defendants are required to respond). 4. P l a i n tiff shall serve upon Defendants or, if appearance has been entered by

c o u n se l, upon Defendants' counsel, a copy of every further pleading or other document s u b m itte d for consideration of the Court. Plaintiff shall include with the original paper to be file d with the Clerk of the Court a certificate stating the manner in which a true and correct copy o f any document was served on Defendants, or counsel for Defendants, and the date of service. A n y paper received by the Court which has not been filed with the Clerk or which fails to in c lu d e a Certificate of Service will be disregarded. I T IS SO ORDERED. D A T E D : February 20, 2009

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1734-Serve FAC

4

08cv1734