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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:21-cv-0124-CAB-AHG
KENNETH K. KIMES,
CDCR #V-80313,

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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.,

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Defendants.

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AND

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(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)

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I.

Procedural History

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On January 21, 2021, Plaintiff Kenneth Kimes, currently incarcerated at the Richard

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

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filed a civil rights action pursuant to 42 U.S.C. Section 1983. (See Compl., ECF No. 1.) In
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3:21-cv-0124-CAB-AHG

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addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) (See ECF No. 2.)

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On February 12, 2021, the Court GRANTED Plaintiff’s Motion to Proceed IFP but

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DISMISSED his Complaint for failing to state a claim. (See Feb. 12, 2021 Order at 13-

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14.) Plaintiff was granted leave to file an amended complaint in order to correct the

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deficiencies of pleading identified in the Court’s Order. (See id.) Plaintiff was cautioned

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that “Defendants not named and any claim not re-alleged in his Amended Complaint will

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be considered waived.” (Id. citing S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v.

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Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

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supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

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(noting that claims dismissed with leave to amend which are not re-alleged in an amended

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pleading may be “considered waived if not repled.”).)

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Plaintiff filed his First Amended Complaint (“FAC”) on March 9, 2021. (See FAC,

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ECF No. 9.) In his FAC, Plaintiff no longer named Defendants Randolph, Allen, or Diaz

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and thus, the Court DISMISSED these Defendants from this action and all claims against

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these Defendants were deemed waived. (See Feb. 12, 2021 Order at 5.) In addition, the

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Court DISMISSED all other claims against the remaining Defendants pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A(b) but determined that Plaintiff had alleged a plausible

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First Amendment retaliation claim against Defendant Cowart. (See id. at 5-10.) Plaintiff

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was given the opportunity to either: (1) notify the Court of the intent to proceed with his

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First Amendment retaliation claims against Defendant Cowart only; or (2) file an amended

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pleading correcting all the deficiencies of pleading identified by the Court in the February

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12, 2021 Order. (See id. at 10.) The time to choose either option has since passed and

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Plaintiff has not filed an amended pleading.

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II.

Conclusion and Order

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For the reasons discussed, the Court:

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1)

DISMISSES all of Plaintiff’s claims against Defendants Pollard, Allison,

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Barenchi, Norris, Botso, Mejia, C. Dominguez, and Alma Martinez for failing to state a

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claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and directs the Clerk of Court to

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terminate these Defendants from the Court’s docket;

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2)

DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended

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Complaint (ECF No. 8) upon Defendant Cowart and to forward it to Plaintiff along with a

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blank U.S. Marshal Form 285 for this Defendant. In addition, the Clerk will provide

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Plaintiff with a certified copy of February 12, 2021 IFP Order, a certified copy of his FAC,

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and the summons so that he may serve the Defendant. Upon receipt of this “IFP Package,”

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Plaintiff must complete the Form 285 as completely and accurately as possible, include an

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address where this Defendant may be served, see S.D. Cal. Civ. L.R. 4.1.c, and return it to

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the United States Marshal according to the instructions the Clerk provides in the letter

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accompanying his IFP package;

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3)

ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon

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Defendant Cowart as directed by Plaintiff on the USM Form 285 provided to him. All

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costs of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed.

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R. Civ. P. 4(c)(3);

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4)

ORDERS Defendant Cowart, once served, to reply to Plaintiff’s FAC within

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the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a).

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See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive

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the right to reply to any action brought by a prisoner confined in any jail, prison, or other

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correctional facility under section 1983,” once the Court has conducted its sua sponte

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screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and thus, has made a

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preliminary determination based on the face on the pleading alone that Plaintiff has a

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“reasonable opportunity to prevail on the merits,” defendant is required to respond); and
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5)

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

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serve upon the Defendant, or, if appearance has been entered by counsel, upon Defendant’s

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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 pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every

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original document he seeks to file with the Clerk of the Court, a certificate stating the

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manner in which a true and correct copy of that document has been served on the

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Defendants or their counsel, and the date of that service. See S.D. Cal. Civ. L.R. 5.2. Any

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

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fails to include a Certificate of Service upon the Defendant, may be disregarded.

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IT IS SO ORDERED.
Dated: June 7, 2021

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