Arellano v. Sedighi et al

Filing 11

ORDER re 10 1) Dismissing Defendants for Failing to State a Claim and for Seeking Money Damages Against Immune Defendants; and 20 Directing U.S. Marshal to Effect Service of Second Amended Complaint Upon Defendants. The Court:1. DISMISSES Defendant s Paramo and California Correctional Health CareServices Company, 2. DIRECTS the Clerk of Court to issue a summons as to Plaintiff's Second Amended Complaint, 3. ORDERS the U.S. Marshal, upon receipt of Plaintiff's completed USM Form 285s, to timely serve a copy of Plaintiff's First Amended Complaint and summons upon each Defendant as directed by Plaintiff, 4. ORDERS Defendants, once they have been served, to reply to Plaintiff's Second Amended Complaint within the time provi ded, 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to serve upon Defendants or, if appearance has been entered by counsel, upon Defendants' counsel, a copy of every further pleading, motion, or other document submitted for the Court's consideration. Signed by Judge Anthony J. Battaglia on 2/3/2017.(All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ORDER:

Plaintiff,

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vs.

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Case No.: 3:15-cv-02059-AJB (BGS)

RAUL ARELLANO,
CDCR #g-57782,

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SEDIGHI; R. WALKER; S. ROBERTS; J.
LEWIS; M. GLYNN; A. BUSALACCHI

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(1) DISMISSING DEFENDANTS
FOR FAILING TO STATE A CLAIM
AND FOR SEEKING MONEY
DAMAGES AGAINST IMMUNE
DEFENDANTS;

Defendants.

AND

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

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I.

Procedural History
On September 15, 2015, Raul Arellano (“Plaintiff”), currently incarcerated at

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Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, and

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proceeding pro se, filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983

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(Doc. No. 1). On February 1, 2016, this Court granted Plaintiff’s Motion to Proceed In
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3:15-cv-02059-AJB (BGS)

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Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) but sua sponte dismissed his

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Complaint for failing to state a claim upon which relief could be granted. (Doc. No. 3.)

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After receiving an extension of time, Plaintiff filed a First Amended Complaint (“FAC”).

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(Doc. No. 7.) The Court, once again, conducted the required screening and dismissed

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Plaintiff’s FAC for failing to state a claim upon which relief could be granted. On

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October 25, 2016, Plaintiff filed his Second Amended Complaint (“SAC”). (Doc. No.

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10.)

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II.

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

Standard of Review

The Prison Litigation Reform Act (“PLRA”) requires the Court to review

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complaints filed by all 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 frivolous, malicious, fail to state a

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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; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

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(discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining

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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.
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Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen

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determining whether a complaint states a claim, a court must accept as true all allegations

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of material fact and must construe those facts in the light most favorable to the

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plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In

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addition, the court “ha[s] an obligation where the petitioner is pro se, particularly in civil

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rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of

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

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Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)).

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B.

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When the Court dismissed Plaintiff’s FAC, he was informed that any “Defendants

Dismissed Defendants

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not named and any claims not re-alleged in the Amended Complaint will be considered

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waived.” See Aug. 19, 2016 Order, Doc. No. 8 at 8-9, citing Hal Roach Studios, Inc., v.

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Richard Feiner & Co., Inc, 896 F.2d 1542, 1546 (9th Cir. 1989). In his SAC, Plaintiff no

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longer names Daniel Paramo and therefore, this Defendant is DISMISSED from this

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action.

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While Plaintiff names the “California Correctional Health Care Services” as a

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Defendant, he fails to allege any facts specific to what this Defendant is alleged to have

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done. Regardless, Plaintiff cannot bring an action for money damages against this

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Defendant and the claims as to this Defendant must be dismissed sua sponte pursuant to

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both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim and for seeking

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damages against a defendant who is immune. The State of California’s Department of

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Corrections and Rehabilitation and any state prison, correctional agency, sub-division, or

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department under its jurisdiction, are not “persons” subject to suit under § 1983. Hale v.

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State of Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department
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of corrections is an arm of the state, and thus, not a “person” within the meaning of

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§ 1983). And if by naming an agency within the CDCR as a party, Plaintiff really seeks

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to sue the State of California itself, his claims are clearly barred by the Eleventh

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Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (“There can

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be no doubt . . . that [a] suit against the State and its Board of Corrections is barred by the

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Eleventh Amendment, unless [the State] has consented to the filing of such a suit.”).

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Therefore, to the extent Plaintiff seeks monetary damages against the California

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Correctional Health Care Services Company, this Defendant is dismissed pursuant to 28

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U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C. § 1915A(b)(1) & (2).

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C.

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Based on the allegations contained in Plaintiff’s SAC, the Court now finds

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Plaintiff’s SAC is sufficient to survive the “low threshold” for proceeding past the sua

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sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b) as to the remaining

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Defendants. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012).1

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Remaining Defendants

Accordingly, the Court will direct U.S. Marshal service on Plaintiff’s behalf. See

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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

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service be made by a United States marshal or deputy marshal . . . if the plaintiff is

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

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III.

Conclusion and Order

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Good cause appearing, the Court:

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1.

DISMISSES Defendants Paramo and California Correctional Health Care

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Services Company for failing to state a claim and for seeking monetary damages against

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an immune defendant pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C.

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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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§ 1915A(b)(1) & (2).
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DIRECTS the Clerk of Court to issue a summons as to Plaintiff’s Second

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Amended Complaint (Doc. No. 10) upon Defendants and forward it to Plaintiff along

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with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Court

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DIRECTS the Clerk to provide Plaintiff with a certified copy of this Court’s February 1,

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2016 Order Granting Plaintiff’s Motion for Leave to Proceed IFP (Doc. No. 3), a certified

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copy of his Second Amended Complaint (Doc. No. 10), and the summons so that he may

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serve Defendants. Once he receives this “IFP Package,” the Court ORDERS Plaintiff to

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

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

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the letter accompanying his IFP package.

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3.

ORDERS the U.S. Marshal, upon receipt of Plaintiff’s completed USM

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Form 285s, to timely serve a copy of Plaintiff’s First Amended Complaint and summons

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upon each Defendant as directed by Plaintiff. All costs of that service will be advanced

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

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4.

ORDERS Defendants, once they have been served, to reply to Plaintiff’s

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Second Amended Complaint within the time provided by the applicable provisions of

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Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant

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may occasionally be permitted to “waive the right to reply to any action brought by a

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prisoner confined in any jail, prison, or other correctional facility under section 1983,”

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once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2)

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and § 1915A(b), and thus, has made a preliminary determination based on the face on the

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pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” the

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defendant is required to respond).

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5.

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon Defendants or, if appearance has been entered by counsel, upon Defendants’

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counsel, a copy of every further pleading, motion, or other document submitted for the

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Court’s consideration. Plaintiff must include with every original document he seeks to file
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with the Clerk of the Court, a certificate stating the manner in which a true and correct

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copy of that document has been was served on Defendants, or counsel for Defendants, and

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the date of that service.

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Any document received by the Court which has not been properly filed with the Clerk

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or which fails to include a Certificate of Service upon the Defendants may be disregarded.

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IT IS SO ORDERED.
Dated: February 3, 2017

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