Roettgen v. Foston et al

Filing 15

ORDER: (1) Denying as Moot 12 Plaintiff's Second Motion for Extension of Time to Amend; and (2) Directing U.S. Marshal to Effect Service of 14 Plaintiff's First Amended Complaint. This action is Dismissed as to previously-named Defenda nts D. Foston, R. Briggs, Mueca, McDaniels, C. Ramos, R. Davis, D. Smith, E. Garza, W.J. Sullivan, and T. Kabban-Miller. The Clerk is Directed to terminate these individuals as parties in this matter. The Clerk shall issue a summons as to Plaintif f's First Amended Complaint upon the remaining Defendants: G. Hernandez, C. Davis, M.L. Lee, J.F. Pickett, I. Bravo, P. Smith, J.L. Tolbert, L. Hinkle, and J. Merchant, and prepare IFP package. Signed by Judge Gonzalo P. Curiel on 7/15/2014. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN ROETTGEN,
CDCR #V-05142,

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Case No.
Plaintiff,

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vs.

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G. HERNANDEZ, Lieutenant;
C. DAVIS, Correctional Officer;
M.L. LEE, Correctional Officer;
J.F. PICKETT, Correctional Officer;
I. BRAVO, Correctional Officer;
P. SMITH, Correctional Officer;
J.L. TOLBERT, Correctional Lieutenant;
L. HINKLE, Registered Nurse;
J. MERCHANT, Correctional Lieutenant,

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ORDER:
1) DENYING PLAINTIFF’S
SECOND MOTION FOR
EXTENSION OF TIME
TO AMEND AS MOOT
[ECF Doc. No. 12];
AND
2) DIRECTING U.S. MARSHAL
TO EFFECT SERVICE OF
PLAINTIFF’S FIRST AMENDED
COMPLAINT PURSUANT
TO FED.R.CIV.P. 4(c)(3)
AND 28 U.S.C. § 1915(d)
[ECF Doc. No. 14]

Defendants.

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John Roettgen (“Plaintiff”), currently incarcerated at Richard J. Donovan

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Correctional Facility (“RJD”) in San Diego, California, is proceeding in pro se and in

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forma pauperis (“IFP”) in this civil rights action, which he first initiated pursuant to 42

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U.S.C. § 1983 in May 2013.
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I.

PROCEDURAL HISTORY

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On September 23, 2013, the Court granted Plaintiff’s Motion for Leave to Proceed

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IFP, but sua dismissed his Complaint without prejudice for failing to state a claim

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pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Sept. 23, 2013 Order (ECF Doc.

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No. 7). While the Court found Plaintiff’s Complaint failed to comply with Federal Rule

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of Civil Procedure 8, failed to state a conspiracy or due process claim against any

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defendant, and failed to state a claim for retaliation as to most of the nineteen originally-

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named defendants, id. at 4-8, his excessive force and retaliation claims against

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Defendants C. Davis, M.L. Lee, P. Smith, and I. Bravo were found sufficient to “survive

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the sua sponte screening process.” Id. at 4. Plaintiff was granted 45 days leave to amend

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in the event he might “attempt to cure” his other defects of pleading, but was cautioned

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that his Amended Complaint must be complete in itself, that it would supersede his

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original pleading, and that “any defendant not named and all claims not re-alleged in

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[his] Amended Complaint [would] be deemed waived. Id. at 8-9 (citing King v. Atiyeh,

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814 F.2d 565, 567 (9th Cir. 1987)); see also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th

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Cir. 2000) (en banc) (“[A] district court should grant leave to amend even if no request

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to amend the pleading was made, unless it determines that the pleading could not

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possibly be cured.”) (citations omitted).

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On November 18, 2013, the Court granted Plaintiff’s request for clarification as

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to part of the Court’s September 23, 2013 Order, and simultaneously granted him an

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extension of time in which to submit his Amended Complaint (ECF Doc. No. 9).

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Plaintiff thereafter filed a “Second Motion for Extension of Time to Amend” (ECF Doc.

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No. 12), but before the Court could consider that Motion, Plaintiff submitted his First

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Amended Complaint (“FAC”), which the Court directed the Clerk to accept for filing,

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despite its untimeliness (ECF Doc. Nos. 13, 14). Plaintiff’s FAC names and asserts

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claims against only nine of the originally named-defendants: G. Hernandez, C. Davis,

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M.L. Lee, J.F. Pickett, I. Bravo, P. Smith, J.L. Tolbert, L. Hinkle, and J. Merchant. See

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FAC at 3-5.
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II.

SCREENING OF PLAINTIFF’S AMENDED COMPLAINT

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As Plaintiff is aware, the Court conducts a preliminary review or “screening” of

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all complaints filed by persons proceeding IFP, and by those, like Plaintiff, who are

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“incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated

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

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

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

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dismiss complaints, or any portions thereof, which are found to be frivolous or malicious,

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those which fail to state a claim, and those seeking damages from defendants who are

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immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002,

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1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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“[W]hen determining whether a complaint states a claim, a court must accept as

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true all allegations of material fact and must construe those facts in the light most

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favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also

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Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6).”). In addition,

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courts “have an obligation where the petitioner is pro se, particularly in civil rights cases,

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to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”

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Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773

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F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however, “supply essential

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elements of claims that were not initially pled.” Ivey v. Board of Regents of the

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University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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As currently pleaded, the Court finds the allegations in Plaintiff’s First Amended

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Complaint sufficient to survive the sua sponte screening required by 28 U.S.C.

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§§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27.1 Accordingly, the Court

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will order U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d) (“The officers

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of the court shall issue and serve all process, and perform all duties in [IFP] cases.”);

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FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a United States

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marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis

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under 28 U.S.C. § 1915.”).

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III.

CONCLUSION AND ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1)

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Plaintiff’s Second Motion for Extension of Time to Amend (ECF Doc. No.

12) is DENIED as moot.
2)

The action is DISMISSED as to previously-named Defendants D. Foston,

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R. Briggs, Mueca, McDaniels, C. Ramos, R. Davis, D. Smith, E. Garza, W.J. Sullivan,

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and T. Kabban-Miller based on Plaintiff’s failure to re-allege any claims against them

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in his First Amended Complaint.

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individuals as parties in this matter.

The Clerk is DIRECTED to terminate these

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IT IS FURTHER ORDERED that:

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3)

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

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upon the remaining Defendants: G. Hernandez, C. Davis, M.L. Lee, J.F. Pickett, I.

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Bravo, P. Smith, J.L. Tolbert, L. Hinkle, and J. Merchant, and shall and forward it to

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Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. In

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addition, the Clerk shall provide Plaintiff with certified copies of this Order, the

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September 23, 2013 Order Granting Plaintiff Leave to Proceed IFP (ECF Doc. No. 7),

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and his First Amended Complaint (ECF Doc. No. 14), and include them with the

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summons so that he may serve each named Defendant named in the First Amended

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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(b)(6) 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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Complaint. Upon receipt of this “IFP Package,” Plaintiff is directed to complete the

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

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

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accompanying his IFP package. Upon receipt, the U.S. Marshal shall serve a copy of the

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

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

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

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4)

Defendants are thereafter ORDERED to reply to Plaintiff’s First Amended

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Complaint within the time provided by the applicable provisions of Federal Rule of Civil

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Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

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permitted to “waive the right to reply to any action brought by a prisoner confined in any

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jail, prison, or other correctional facility under section 1983,” once the Court has

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conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),

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and thus, has made a preliminary determination based on the face on the pleading alone

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that Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is

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required to respond).

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5)

Plaintiff shall serve upon the Defendants or, if appearance has been entered

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

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document submitted for consideration of the Court. Plaintiff shall include with the

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original paper to be filed with the Clerk of the Court a certificate stating the manner in

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which a true and correct copy of any document was served on Defendants, or counsel for

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Defendants, and the date of service. Any paper received by the Court which has not been

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filed with the Clerk or which fails to include a Certificate of Service will be disregarded.

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IT IS SO ORDERED.
DATED: July 15, 2014

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HON. GONZALO P. CURIEL
United States District Judge

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