Atwood II v. United States of America et al

Filing 11

ORDER Screening Complaint; and Order Requiring U.S. Marshal's Service to Serve Defendants. The United States itself is not a proper Defendant, claims against the United States are therefore dismissed. Accordingly, the Court finds that the Compla int survives screening as to claims against this District's Probation Office. The Court orders the U.S. Marshals Service to serve a copy of the Complaint (Docket no. 1 ), Summons, Supplemental Briefing (Docket no. 10 ), and this Order on the U. S. Probation Office for the Southern District of California, as directed by Plaintiff on U.S. Marshal Form 285. Signed by Judge Larry Alan Burns on 7/28/2017. (United States of America terminated)(IFP Package Prepared and Mailed to Petitioner)(New Summons Prepared)(All non-registered users served via U.S. Mail Service)(lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID GARLAND ATWOOD II,

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CASE NO. 17cv1320-LAB (WVG)
Plaintiff,

ORDER SCREENING COMPLAINT;
AND

vs.
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ORDER REQUIRING U.S. MARSHAL’S
SERVICE TO SERVE DEFENDANTS

UNITED STATES OF AMERICA, et al.,
Defendants.

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Plaintiff David Garland Atwood II, proceeding pro se and in forma pauperis, filed a

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pleading (“Complaint”) seeking to compel this District’s U.S. Probation Office to accept

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supervision of him so that he can come to San Diego for medical treatment. The Court

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ordered Atwood to file supplemental briefing, which he has now done. The Court construes

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both the Complaint and the supplemental briefing together as giving his position.

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The Court is required to screen the complaint of a plaintiff proceeding in forma

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pauperis, and to dismiss it to the extent it is frivolous or malicious, fails to state a claim, or

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seeks monetary relief from an immune defendant. See 28 U.S.C. § 1915(e)(2)(B); Lopez

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v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). Because he is proceeding pro se,

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the Court construes Atwood’s pleadings liberally. See Zichko v. Idaho, 247 F.3d 1015, 1020

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(9th Cir. 2001).

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17cv1320

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Atwood’s says his local U.S. Attorney’s office and probation office do not oppose his

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coming to San Diego, provided that the probation office here will accept supervision of him.

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His argument, essentially, is that this District’s probation office is arbitrarily refusing to accept

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supervision, resulting in a denial of needed medical care. Because he is seeking to enjoin

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Defendants in this District, and not asking the Court to modify his terms of release, it appears

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this Court would have jurisdiction over any claim he might have.

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The relief Atwood seeks is injunctive in nature; he is asking the Court to order the U.S.

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Probation Office in this District (or, potentially, one or more officers in the office) to supervise

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him. The Office therefore may be a proper Defendant. But because the United States itself

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is not a proper Defendant, claims against the United States are therefore DISMISSED.

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Whether Atwood’s claim has any merit depends primarily on two factors: whether his

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his substantive rights are being infringed, and whether the law provides some mechanism

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for enforcement of those rights. As a general matter, the government can limit Atwood’s

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rights as part of his supervised release. “[P]robationers, like parolees and prisoners,

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properly are subject to limitations from which ordinary persons are free.” United States v.

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Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.1975) (en banc). That being said, the

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government cannot deny access to necessary medical care, even to prisoners, in a manner

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that serves no legitimate purpose. See Estelle v. Gamble, 429 U.S. 97, 103 (1976). The

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treatment Atwood seeks is at least arguably medically necessary to prevent him from losing

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the use of his legs.

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It isn’t completely clear which law might provide for the kind of relief Atwood is

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seeking. Other courts have construed 28 U.S.C. § 1361 as providing an avenue of relief,

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at least where there is a clear right to the relief, where the defendant clearly has a duty to

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act, and where no other adequate remedy is available. See, e.g., Rizzo v. Terenzi, 619 F.

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Supp. 1186, 1189 (E.D. N.Y. 1985). Assuming there is no other law under which Atwood

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might seek relief, the Complaint, construed liberally, could satisfy this standard.

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Accordingly, the Court finds that the Complaint survives screening as to claims

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against this District’s Probation Office. The Clerk is directed to generate a new electronic
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17cv1320

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summons. The Court ORDERS the U.S. Marshals Service to serve a copy of the Complaint

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(Docket no.1), Summons, Supplemental Briefing (Docket no. 10), and this Order on the U.S.

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Probation Office for the Southern District of California, as directed by Plaintiff on U.S.

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Marshal Form 285.1 All costs of service shall be advanced by the United States. Atwood is

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responsible for properly completing the form, so it complies with Fed. R. Civ. P. 4(i)’s

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requirements for service on this Defendant.

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IT IS SO ORDERED.
DATED: July 28, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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The U.S. Marshals’ service is not required to do any more than Fed. R. Civ. P. 4(i)
requires. The service may, for example, send copies of these documents by registered or
certified mail to certain officials as permitted under the rule, and need not deliver them
personally.
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17cv1320