Woodall v. Schwarzenegger et al

Filing 64

ORDER (1) Dismissing claims and defendants for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2); and (2) Directing U.S. Marshal to effect service of Second Amended Complaint pursuant to FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) upon remaining defendants. Defendants Cate, Contreras, Olson, Gonzalez, Nelson and Vasquez are Dismissed from this action. The Clerk shall issue a summons as to Plaintiffs 35 Second Amended Complaint upon the remaining Defendants and shall and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. Signed by Judge Barry Ted Moskowitz on 2/3/12.(All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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SHAWN WOODALL
CDCR # F-91270,

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Civil No.

Plaintiff,

ORDER:

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(1) DISMISSING CLAIMS AND
DEFENDANTS FOR FAILURE TO
STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2); and

vs.

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(2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF SECOND
AMENDED COMPLAINT
PURSUANT TO FED.R.CIV.P. 4(c)(3)
& 28 U.S.C. § 1915(d) UPON
REMAINING DEFENDANTS

ARNOLD SCHWARZENEGGER, et al.,

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Defendants.

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I.

Procedural History

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On August 31, 2010, Plaintiff, proceeding pro se, filed a civil action pursuant to 42

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U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis (“IFP). At the time Plaintiff

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initially filed this action he was not incarcerated. Before the Court could rule on Plaintiff’s IFP

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Motion and screen his Complaint, Plaintiff filed a First Amended Complaint. Since the filing of

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this action, Plaintiff has been in and out of the custody of the California Department of

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Corrections and Rehabilitation (“CDCR”) more than once, and according to his latest notice of

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change of address [ECF No. 53] Plaintiff is currently housed in the San Diego Central Jail. The

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allegations giving rise to Plaintiff’s action are based on events that occurred while he was housed

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at the Richard J. Donovan Correctional Facility (“Donovan”).

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On March 9, 2011, the Court issued an Order granted Plaintiff’s Motion to Proceed IFP

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and found that many of the claims in Plaintiff’s First Amended Complaint failed to state a claim

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upon which relief could be granted. Plaintiff was given the option to either proceed with the

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claims that survived the sua sponte screening process or file an Amended Complaint in order to

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correct the deficiencies of pleading identified by the Court. After requesting several extensions

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of time to file his Second Amended Complaint, which were granted by the Court, Plaintiff filed

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his Second Amended Complaint (“SAC”) on August 10, 2011 [ECF No. 35].

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On December 28, 2011, the Court conducted the required sua sponte screening on

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Plaintiff’s Second Amended Complaint. The Court found that some of Plaintiff’s claims

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survived screening. Plaintiff was given the option of notifying the Court of his intention to

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proceed with the claims that survived screening or he could file a Third Amended Complaint in

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order to correct the deficiencies of pleading identified by the Court. See Dec. 28, 2011 Order

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at 5. On January 6, 2012, Plaintiff notified the Court of his intention to proceed with the claims

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that survived the screening process and he would not be filing an Amended Complaint. [ECF

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No. 62].

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II.

Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2)

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As stated by the Court in its previous Orders, any complaint filed by a person proceeding

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IFP is subject to sua sponte dismissal by the Court to the extent it contains claims which are

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“frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary

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relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl,

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254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C.

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§ 1915(e)(2)(B) are not limited to prisoners.”).

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A.

Waiver of Defendants

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In the Court’s December 28, 2011 Order, the Court noted that Plaintiff failed to re-allege

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claims against a number of Defendants and thus, these Defendants were dismissed from this

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action. However, upon further review, the Court also finds that Plaintiff has failed to re-allege

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any claims against Defendant Cate in his Second Amended Complaint. Thus, the Court finds

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that Plaintiff has waived all claims against Defendant Cate and he is DISMISSED from this

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action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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B.

Waiver of claims and Defendants

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In his response to the Court’s December 28, 2011 Order, Plaintiff has indicated that he

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intends to proceed with the claims that the Court has determined survive sua sponte screening.

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Accordingly, all the claims dismissed by the Court in the December 28, 2011 are no longer part

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of this action and remain dismissed.

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In addition, Plaintiff, by foregoing the filing of a Third Amended Complaint, has waived

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all claims against Defendants Contreras, Olson, Gonzalez, Nelson and Vasquez. Thus, those

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Defendants are DISMISSED from this action.

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III.

Conclusion and Order

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Good cause appearing, IT IS HEREBY ORDERED:

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1.

Defendants Cate, Contreras, Olson, Gonzalez, Nelson and Vasquez are

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DISMISSED from this action. See King, 814 F.2d at 567. The Clerk of Court is directed to

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terminate these Defendants from the docket.

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IT IS FURTHER ORDERED that:

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2.

The Clerk shall issue a summons as to Plaintiff’s Second Amended Complaint

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[ECF No. 35] upon the remaining Defendants and shall and forward it to Plaintiff along with

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a blank U.S. Marshal Form 285 for each Defendant. In addition, the Clerk shall provide Plaintiff

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with a certified copy of this Order and a certified copy of his Second Amended Complaint and

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the summons so that he may serve Defendants. Upon receipt of this “IFP Package,” Plaintiff is

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directed to complete the Form 285s as completely and accurately as possible, and to return them

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to the United States Marshal according to the instructions provided by the Clerk in the letter

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accompanying his IFP package.

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Second Amended Complaint and summons upon Defendants as directed by Plaintiff on the

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USM Form 285s. All costs of service shall be advanced by the United States. See 28 U.S.C.

Upon receipt, the U.S. Marshal shall serve a copy of the

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§ 1915(d); FED.R.CIV.P. 4(c)(3).
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Plaintiff shall serve upon the Defendants or, if appearance has been entered by

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counsel, upon Defendants’ counsel, a copy of every further pleading or other document

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submitted for consideration of the Court. Plaintiff shall include with the original paper to be

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filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy

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of any document was served on Defendants, or counsel for Defendants, and the date of service.

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Any paper received by the Court which has not been filed with the Clerk or which fails to

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include a Certificate of Service will be disregarded

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IT IS SO ORDERED.

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DATED: February 3, 2012

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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