Singson v. Kernan et al

Filing 7

ORDER Dismissing Defendants Kernan, Neotti, Morris, Brandt, Norman, Choo, Schwarzenegger, Romero, Kelso and Seeley: The Clerk of Court is directed to terminate these Defendants from the docket. The Clerk of Court is further directed to issue a summons as to Plaintiff's First Amended Complaint upon Defendants Marrero and Suglich and shall forward it to Plaintiff. Signed by Judge William Q. Hayes on 4/11/11.(All non-registered users served via U.S. Mail Service)(lmt) (jcj).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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RONALD SINGSON,
CDCR #H-23699,

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Civil No.

Plaintiff,

ORDER DISMISSING
DEFENDANTS KERNAN, NEOTTI,
MORRIS, BRANDT, NORMAN,
CHOO, SCHWARZENEGGER,
ROMERO, KELSO AND SEELEY

vs.

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10-2362 WQH (BLM)

E. MARRERO; W. SUGLICH,
Defendants.

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I.

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PROCEDURAL HISTORY

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On November 15, 2010, Ronald Singson, a state inmate currently incarcerated at the

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Richard J. Donovan Correctional Facility located in San Diego, California, submitted a civil

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action pursuant to 42 U.S.C. § 1983. Plaintiff has paid the required $350.00 initial civil filing

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fee in order to proceed in this matter rather than filing a Motion to Proceed In Forma Pauperis.

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In addition, Plaintiff filed a Motion to Appoint Counsel.

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On January 12, 2011, the Court denied Plaintiff’s Motion for Appointment of Counsel

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and sua sponte dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C.

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§ 1915A. See Jan. 12, 2011 Order at 4. Plaintiff was granted leave to file an Amended

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Complaint in order to correct the deficiencies identified by the Court. Id. Plaintiff was also

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cautioned that Defendants not named in the Amended Complaint will be deemed to have been

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waived. Id. (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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II.

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SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915A(b)

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As the Court stated in its previous Order, the Prison Litigation Reform Act (“PLRA”),

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28 U.S.C. § 1915A, obligates the Court to review complaints filed by anyone “incarcerated or

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detained in any facility who is accused of, sentenced for, or adjudicated delinquent for,

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violations of criminal law or the terms or conditions of parole, probation, pretrial release, or

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diversionary program,” “as soon as practicable after docketing” and regardless of whether the

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prisoner prepays filing fees or moves to proceed in forma pauperis. See 28 U.S.C. § 1915A(a),

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(c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are

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frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. §

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1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

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In his First Amended Complaint, Plaintiff no longer names Kernan, Neotti, Morris,

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Brandt, Norman, Choo, Schwarzenegger, Romero, Kelso or Seeley as Defendants. Thus, any

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claims against those Defendants have been waived. See King, 814 F.2d at 567. Those

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Defendants are DISMISSED from this action.

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As to the remaining claims against the remaining two Defendants, the Court finds

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Plaintiff’s allegations sufficient to survive the sua sponte screening required by 28 U.S.C.

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§ 1915A(b).1 However, because Plaintiff is not proceeding in forma pauperis, he is not entitled

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to U.S. Marshal service on his behalf. Plaintiff is responsible for effecting proper service on

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Defendants Marrero and Suglich. If Plaintiff fails to properly serve these Defendants within 120

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days from the date this Order is filed, the Court will dismiss this action pursuant to FED.R.CIV.P.

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4(m).

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Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of,
and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.”
Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
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III.

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CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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(1)

Defendants Kernan, Neotti, Morris, Brandt, Norman, Choo, Schwarzenegger,

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Romero, Kelso or Seeley are DISMISSED from this action. The Clerk of Court is directed to

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terminate these Defendants from the docket.

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(2)

The Clerk of Court is further directed to issue a summons as to Plaintiff’s First

Amended Complaint upon Defendants Marrero and Suglich and shall forward it to Plaintiff.
IT IS SO ORDERED.
DATED: April 11, 2011

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WILLIAM Q. HAYES
United States District Judge

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