Tran v. Gore et al

Filing 8

ORDER (1) Dismissing Defendant William D. Gore; and (2) Directing U.S. Marshal to effect service of amended complaint pursuant to FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d).Defendant William D. Gore is Dismissed from this action. The Clerk shal l issue a summons as to Plaintiff's 7 First Amended Complaint upon the remaining Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. Signed by Judge Barry Ted Moskowitz on 9/19/11. (IFP Package sent to defendant)(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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HOANG MINH TRAN,
CDCR #AA-5994,

Civil No.
Plaintiff,

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ORDER:
(1) DISMISSING DEFENDANT
WILLIAM D. GORE; and

vs.

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

E. SCHROEDER; OMAR ORTEGA;
MICHAEL DALBRATT;
NICHOLAS RAMIREZ,
Defendants.

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I.

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PROCEDURAL HISTORY

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On November 29, 2010, Plaintiff, Hoang Minh Tran, a state prisoner currently

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incarcerated at California Men’s Colony located in San Luis Obispo, California and proceeding

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pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff also filed a Motion to

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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). On May 2, 2011, the Court

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granted Plaintiff’s Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to

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state a claim. See May 2, 2011 Order at 5-6. On June 29, 2011, Plaintiff filed his First Amended

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Complaint (“FAC”).
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II.

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SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A

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

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obligates the Court to review complaints filed by all persons proceeding IFP and by those, like

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Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

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adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

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probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.”

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See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte

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dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails

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to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §

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1915(e)(2)(B) and § 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

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The Court finds that Plaintiff’s claims are now sufficiently pleaded to survive the sua

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sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is

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entitled to U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C.

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§ 1915(d); FED.R.CIV.P. 4(c)(3). Plaintiff is cautioned, however, that “the sua sponte screening

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and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6)

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motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119

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(S.D. Cal. 2007).

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III.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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Defendant William D. Gore is DISMISSED from this action. See King v. Atiyeh

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(814 F.2d 565, 567 (9th Cir. 1987) (Defendants not named and all claims not re-alleged in the

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Amended Complaint will be deemed to be waived.) The Clerk of Court is directed to terminate

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this Defendant from the Court’s 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 First Amended Complaint [ECF

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No. 7] upon the remaining Defendants and shall forward it to Plaintiff along with a blank U.S.

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Marshal Form 285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff

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with a certified copy of this Order, the Court’s May 2, 2011 Order granting Plaintiff leave to

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proceed IFP [ECF No. 4], and certified copies of his First Amended Complaint and the summons

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for purposes of serving each Defendant. Upon receipt of this “IFP Package,” Plaintiff is directed

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

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

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accompanying his IFP package. Thereafter, the U.S. Marshal shall serve a copy of the First

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Amended Complaint and summons upon each Defendant as directed by Plaintiff on each Form

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285. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d);

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FED.R.CIV.P. 4(c)(3).

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3.

Plaintiff shall serve upon 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: September 19, 2011

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Honorable Barry Ted Moskowitz
United States District Judge

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