Johnson v. Gains et al

Filing 24

ORDER Directing U.S. Marshal to Effect Service of Third Amended Complaint. Defendants J Builteman, C J Caffarell, J Criman, R Delgada, J Devenberg, D Edwards, D Felix, R Fernandez, N Grannis, R Hopper, T Hughes, G J Janda, R Madden, J Magner, D Midd leton, T Ochoa, M Ormand, M Perez, R Phillips, W J Price, B C Reis, J Rodriguez, L Smalls, M Stangle, W Webb, K Wood, D Woodward, S Anderson, N Brown and "Unknown" defendant are dismissed from this action.Signed by Judge Larry Alan Burns on 3/12/2010.(IFP package sent)(All non-registered users served via U.S. Mail Service)(knh) (kaj).

1 2 3 4 5 6 7 8 9 10 11 12 13 vs. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. P ROCEDURAL HISTORY O n June 8, 2009, Anthony Wayne Johnson, Jr. ("Plaintiff"), a state prisoner currently inca rce rated at Salinas Valley State Prison located in Soledad, California, and proceeding pro s e , submitted a civil rights Complaint pursuant to 28 U.S.C. § 1983. Plaintiff's original C o m p la in t named forty three (43) defendants and attached more than a thousand pages as E x h ib its . On August 18, 2009, the Court granted Plaintiff's Motion to Proceed in forma p a u p e ris ("IFP") but sua sponte dismissed Plaintiff's Complaint for failing to state a claim upon w h ic h relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). See Aug. 18,
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

A N T H O N Y WAYNE JOHNSON, Jr., C D C R #F-58411, P la in tif f ,

C iv il No.

0 9 c v 1 3 1 2 LAB (POR)

M . GAINS, et al., D e f e n d a n ts .

O R D E R DIRECTING U.S. MARSHAL TO EFFECT S E R V I C E OF THIRD AMENDED C O M P L A IN T PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d)

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2 0 0 9 Order at 8-9. Plaintiff was granted leave to amend but he was also cautioned that he must c o m p ly with Rule 8 of the Federal Rules of Civil Procedure. Id. at 4. Plaintiff was informed th a t any Defendants not named and claims not re-alleged in the First Amended Complaint would b e deemed waived. Id. at 9 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Plaintiff filed his First Amended Complaint ("FAC") on September 11, 2009 [Doc. No. 8 ]. The Court found that Plaintiff failed to heed the Court's warning with respect to Rule 8 as P la in tif f 's First Amended Complaint was rambling and contained, once again, over a thousand p a g e s of exhibits. In addition, Plaintiff named thirty nine (39) Defendants and his FAC was m o re than sixty pages long. Despite the numerous deficiencies, the Court granted Plaintiff leave to file a Second Amended Complaint. On October 28, 2009, Plaintiff filed his Second Amended C o m p la in t ("SAC") [Doc. No. 14], along with a Motion to Appoint Counsel [Doc. No. 13]. The C o u rt, once again, sua sponte dismissed Plaintiff's SAC and informed him that he had one final o p p o rtu n ity to amend his pleading. See Nov. 9, 2009 Order at 9. Plaintiff was also cautioned that any Defendants not renamed and all claims not re-alleged in the Amended Complaint would be deemed to have been waived. Id. (citing King v. Atiyeh, 8 1 4 F.2d 565, 567 (9th Cir. 1987)). On February 10, 2010, Plaintiff filed his Third Amended C o m p l a in t ("TAC"). In this pleading, Plaintiff no longer names as Defendants Wood, Edwards, P e r e z , Reis, Anderson, Hopper, Devenberg, Magner, Delgada, Felix, Caffarell, Ochoa, Hughes, S m a lls , Woodward, Grannis, Rodriquez, Builteman, Madden, Brown, Criman, Janda, Middleton, P r ic e , Ormand, Phillips, Stangle, Fernandez, Webb, and various "Unknown" Defendants. Thus, th e se Defendants are DISMISSED from this action. II. S UA SPONTE SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) A s previously discussed in its November 9, 2009 Order, because Plaintiff is proceeding IF P and is a "prisoner" as defined by 28 U.S.C. § 1915(h) at the time he filed this action, the C o u rt must also review his Amended Complaint sua sponte before service, and dismiss the entire a c tio n , or any part of his Amended Complaint, if it is frivolous, malicious, fails to state a claim, o r seeks damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § -2-

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1 9 1 5 A ; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis c o m p lain t that fails to state a claim); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1 9 1 5 A ). Before amendment by the Prison Litigation Reform Act ("PLRA"), the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F .3 d at 1126, 1130. An action is frivolous if it lacks an arguable basis in either law or fact. N eitz k e v. Williams, 490 U.S. 319, 324 (1989). However, 28 U.S.C. § 1915(e)(2) and § 1915A m a n d a te that the court reviewing an IFP or prisoner's suit make and rule on its own motion to d is m is s before effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4 (c )( 3 ). See Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte screening pursuant to § 1915 should occur "before se rv ice of process is made on the opposing parties"); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 28 U.S.C. § 1915A). " [ 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, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) " p a ra llels the language of Federal Rule of Civil Procedure 12(b)(6)"); Andrews v. King, 398 F.3d 1 1 1 3 , 1121 (9th Cir. 2005). 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). T h e Court finds that Plaintiff's claims are now sufficiently pleaded to survive the sua sp o n te screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is e n title d 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 -3-

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[ IF P ] cases."); FED.R.CIV.P. 4(c)(3) ("[T]he court may order that service be made by a United S ta te s marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis u n d e r 28 U.S.C. § 1915."). Plaintiff is cautioned, however, that "the sua sponte screening and d is m is s a l procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) m o tio n that [a defendant] may choose to bring." Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S .D . Cal. 2007). I I I. C ONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. D ef en d an ts Wood, Edwards, Perez, Reis, Anderson, Hopper, Devenberg, Magner,

D e lg a d a , Felix, Caffarell, Ochoa, Hughes, Smalls, Woodward, Grannis, Rodriquez, Builteman, M a d d e n, Brown, Criman, Janda, Middleton, Price, Ormand, Phillips, Stangle, Fernandez, Webb, a n d "Unknown" defendants are DISMISSED from this action. See King, 814 F.2d at 567. 2. T h e Clerk shall issue a summons as to Plaintiff's Third Amended Complaint [Doc.

N o . 23] upon the remaining Defendants and shall forward it to Plaintiff along with a blank U.S. M arsh al Form 285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff w ith a certified copy of this Order, the Court's Order granting Plaintiff leave to proceed IFP [D o c . No. 4], and certified copies of his Third Amended Complaint and the summons for p u rp o s e s 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 U n ite d States Marshal according to the instructions provided by the Clerk in the letter ac co m p an y in g his IFP package. Thereafter, the U.S. Marshal shall serve a copy of the Third A m en d ed Complaint and summons upon each Defendant as directed by Plaintiff on each Form 2 8 5 . All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); F ED.R .C IV.P . 4(c)(3). 3. D efe n d an ts are thereafter ORDERED to reply to Plaintiff's Third Amended

C o m p lain t within the time provided by the applicable provisions of Federal Rule of Civil P ro c e d u re 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted -4-

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to "waive the right to reply to any action brought by a prisoner confined in any jail, prison, or o th e r correctional facility under section 1983," once the Court has conducted its sua sponte scre en in g pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary d e ter m in a tio n 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). 3. P l a in 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 include a Certificate of Service will be disregarded. I T IS SO ORDERED.

D A T E D : March 12, 2010

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

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