Kimes v. Randolph et al

Filing 11

ORDER: (1) Dismissing Claims and Defendants Pursuant to 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b); and (2) Directing U.S. Marshal to Effect Service Upon Defendant Cowart Pursuant to 28 U.S.C. § 1915(d) AND FED. R. CIV. P. 4(c)(3). Signed by Judge Cathy Ann Bencivengo on 6/7/2021.(All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Case No.: 3:21-cv-0124-CAB-AHG KENNETH K. KIMES, CDCR #V-80313, 13 14 15 ORDER Plaintiff, (1) DISMISSING CLAIMS AND DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) v. RANDOLPH, et al., 16 Defendants. 17 AND 18 (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE UPON DEFENDANT COWART PURSUANT TO 28 U.S.C. § 1915(d) AND FED. R. CIV. P. 4(c)(3) 19 20 21 22 23 24 I. Procedural History 25 On January 21, 2021, Plaintiff Kenneth Kimes, currently incarcerated at the Richard 26 J. Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, 27 filed a civil rights action pursuant to 42 U.S.C. Section 1983. (See Compl., ECF No. 1.) In 2 3:21-cv-0124-CAB-AHG 1 addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) (See ECF No. 2.) 2 On February 12, 2021, the Court GRANTED Plaintiff’s Motion to Proceed IFP but 3 DISMISSED his Complaint for failing to state a claim. (See Feb. 12, 2021 Order at 13- 4 14.) Plaintiff was granted leave to file an amended complaint in order to correct the 5 deficiencies of pleading identified in the Court’s Order. (See id.) Plaintiff was cautioned 6 that “Defendants not named and any claim not re-alleged in his Amended Complaint will 7 be considered waived.” (Id. citing S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. 8 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 9 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 10 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 11 pleading may be “considered waived if not repled.”).) 12 Plaintiff filed his First Amended Complaint (“FAC”) on March 9, 2021. (See FAC, 13 ECF No. 9.) In his FAC, Plaintiff no longer named Defendants Randolph, Allen, or Diaz 14 and thus, the Court DISMISSED these Defendants from this action and all claims against 15 these Defendants were deemed waived. (See Feb. 12, 2021 Order at 5.) In addition, the 16 Court DISMISSED all other claims against the remaining Defendants pursuant to 28 17 U.S.C. § 1915(e)(2) and § 1915A(b) but determined that Plaintiff had alleged a plausible 18 First Amendment retaliation claim against Defendant Cowart. (See id. at 5-10.) Plaintiff 19 was given the opportunity to either: (1) notify the Court of the intent to proceed with his 20 First Amendment retaliation claims against Defendant Cowart only; or (2) file an amended 21 pleading correcting all the deficiencies of pleading identified by the Court in the February 22 12, 2021 Order. (See id. at 10.) The time to choose either option has since passed and 23 Plaintiff has not filed an amended pleading. 24 /// 25 /// 26 /// 27 /// 2 3:21-cv-0124-CAB-AHG 1 II. Conclusion and Order 2 For the reasons discussed, the Court: 3 1) DISMISSES all of Plaintiff’s claims against Defendants Pollard, Allison, 4 Barenchi, Norris, Botso, Mejia, C. Dominguez, and Alma Martinez for failing to state a 5 claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and directs the Clerk of Court to 6 terminate these Defendants from the Court’s docket; 7 2) DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended 8 Complaint (ECF No. 8) upon Defendant Cowart and to forward it to Plaintiff along with a 9 blank U.S. Marshal Form 285 for this Defendant. In addition, the Clerk will provide 10 Plaintiff with a certified copy of February 12, 2021 IFP Order, a certified copy of his FAC, 11 and the summons so that he may serve the Defendant. Upon receipt of this “IFP Package,” 12 Plaintiff must complete the Form 285 as completely and accurately as possible, include an 13 address where this Defendant may be served, see S.D. Cal. Civ. L.R. 4.1.c, and return it to 14 the United States Marshal according to the instructions the Clerk provides in the letter 15 accompanying his IFP package; 16 3) ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon 17 Defendant Cowart as directed by Plaintiff on the USM Form 285 provided to him. All 18 costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 19 R. Civ. P. 4(c)(3); 20 4) ORDERS Defendant Cowart, once served, to reply to Plaintiff’s FAC within 21 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 22 See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 23 the right to reply to any action brought by a prisoner confined in any jail, prison, or other 24 correctional facility under section 1983,” once the Court has conducted its sua sponte 25 screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and thus, has made a 26 preliminary determination based on the face on the pleading alone that Plaintiff has a 27 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 2 3:21-cv-0124-CAB-AHG 1 5) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 2 serve upon the Defendant, or, if appearance has been entered by counsel, upon Defendant’s 3 counsel, a copy of every further pleading, motion, or other document submitted for the 4 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 5 original document he seeks to file with the Clerk of the Court, a certificate stating the 6 manner in which a true and correct copy of that document has been served on the 7 Defendants or their counsel, and the date of that service. See S.D. Cal. Civ. L.R. 5.2. Any 8 document received by the Court which has not been properly filed with the Clerk, or which 9 fails to include a Certificate of Service upon the Defendant, may be disregarded. 10 11 12 IT IS SO ORDERED. Dated: June 7, 2021 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 3:21-cv-0124-CAB-AHG

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