Tran v. Gore et al

Filing 8

ORDER Dismissing defendants and directing U.S. marshal to effect service of first amended complaint. Defendants Gore and Schroeder are Dismissed from this action pursuant to 28 U.S.C. § 1915(e)(2) & 1915A. The Clerk shall issue a summons as to Plaintiffs First Amended Complaint upon the remaining Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. Signed by Judge Barry Ted Moskowitz on 12/9/11.(All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HOANG MINH TRAN,
CDCR #AA-5994,

Civil No.

Plaintiff,

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vs.
WILLIAM GORE; E. SCHROEDER; PILE;
WILSON; BROWN; JOHN DOES; JANE
DOES, JOHN GILL; LIZZIE WOMACK;
SARANDI MARINA,

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ORDER DISMISSING DEFENDANTS
AND DIRECTING U.S. MARSHAL
TO EFFECT SERVICE OF FIRST
AMENDED COMPLAINT

Defendants.

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I.

Procedural History

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On December 20, 2010, Hoang Minh Tran (“Plaintiff”), 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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in pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, along with a Motion to

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Proceed In Forma Pauperis (“IFP”).

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Plaintiff was granted leave to proceed IFP but the Court dismissed the claims against

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Defendants Gore and Shroeder pursuant to 28 U.S.C. § 1915(e)(2) & 1915A. See May 23, 2011

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Order at 4-5. Plaintiff was given the option of either notifying the Court of an intention to

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proceed on the surviving claims or file an Amended Complaint correcting the deficiencies of

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pleading identified by the Court. Id. at 5. Plaintiff chose to file an Amended Complaint [ECF

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No. 7].

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II.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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As stated in the Court’s 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 of the PLRA, the Court must

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sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to

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

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1915(e)(2)(B) and 1915A.

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Plaintiff appears to attempt to correct the problems the Court previously found as to his

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claims against Defendants Gore and Schroeder. The Court found that the claims against these

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Defendants were based on respondeat superior liability which is not available under 42 U.S.C.

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§ 1983. See May 23, 2011 Order at 3 (citing Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th

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Cir. 1993)). “The inquiry into causation must be individualized and focus on the duties and

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responsibilities of each individual defendant whose acts or omissions are alleged to have caused

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a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo

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v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff

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must allege personal acts by each individual Defendant which have a direct causal connection

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to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir.

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1986).

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Here, Plaintiff’s First Amended Complaint is far from clear, but it appears that he is

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attempting to allege that there was a policy to deprive a person who is alleged to have made an

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escape attempt their constitutional rights. (See FAC at 7.) As the Court previously stated,

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supervisory prison officials may only be held liable for the allegedly unconstitutional violations

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of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what extent they
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personally participated in or directed a subordinate’s actions, and (2) in either acting or failing

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to act, they were an actual and proximate cause of the deprivation of Plaintiff’s constitutional

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rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “A plaintiff must plead that each

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Government-official defendant, through the official’s own individual actions, has violated the

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Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948 (2009). There are no

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specific factual allegations as to either Gore or Schroeder in relation to these alleged policies.

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Plaintiff’s First Amended Complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid

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of ‘further factual enhancement.’” Id. (citing Bell Atlantic Corp v. Twombly, 550 U.S. 544, 557

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(2007)).

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Accordingly, the Court finds that Plaintiff’s First Amended Complaint fails to set forth

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facts which might be liberally construed to support an individualized constitutional claim against

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Defendant Gore or Schroeder. Thus, Defendants Gore and Schroeder remain dismissed from

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this action.

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As for the remaining claims against the remaining Defendants, the Court finds Plaintiff’s

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allegations sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2)

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and 1915A(b).1 Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his

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behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and

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perform all duties in [IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service

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be made by a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed

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in forma pauperis under 28 U.S.C. § 1915.”).

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III.

Conclusion and Order

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1.

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Defendants Gore and Schroeder are DISMISSED from this action pursuant to 28

U.S.C. § 1915(e)(2) & 1915A.
2.

The Clerk shall issue a summons as to Plaintiff’s First Amended Complaint [ECF

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

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

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certified copy of the Order granting his Motion to Proceed IFP and a certified copy of his First

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Amended Complaint and the summons so that he may serve Defendants. Upon receipt of this

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“IFP Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as

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possible, and to return them to the United States Marshal according to the instructions provided

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by the Clerk in the letter accompanying his IFP package. Upon receipt, the U.S. Marshal shall

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serve a copy of the First Amended Complaint and summons upon Defendants as directed by

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Plaintiff on the USM Form 285s. All costs of service shall be advanced by the United States.

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See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3).

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3.

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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DATED: December 9, 2011

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Honorable Barry Ted Moskowitz
United States District Judge

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