1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DENNIS SMITH, Case No.: 3:19-cv-0620-CAB-MSB

CDCR #AX-8010,

12

ORDER:

Plaintiff, 13 vs. 1) DISMISSING DEFENDANT SAN 14

DIEGO CENTRAL JAIL;

15

DEPUTY K. BRANGWYNNE; AND

16

DEPUTY S. CARDA; DEPUTY

17 C. FICKETT; DEPUTY J. HANN; 2) DIRECTING USMS TO EFFECT

DEPUTY J. KLIEBENSTEIN; SERVICE OF FIRST AMENDED

18

DEPUTY A. MENDOZA; COUNTY OF COMPLAINT

19 SAN DIEGO; DOES 1-5, 20 Defendants. 21 22 23 I. Procedural History 24 On April 2, 2019, Plaintiff, Dennis Smith, currently a state inmate housed at the 25 Substance Abuse Treatment Facility (“SATF”) located in Corcoran, California, filed a 26 civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). In addition, he filed a 27 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 28 4). Plaintiff alleged his constitutional rights were violated when he was a pretrial detainee 1 housed at the San Diego Central Jail (“SDCJ”) in 2018. The Court GRANTED 2 Plaintiff’s Motion to Proceed IFP and DISMISSED some claims and Defendants for 3 failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. 4 § 1915(e)(2) & 1915A(b). (ECF No. 5.) On June 28, 2019, Plaintiff filed his First 5 Amended Complaint (“FAC”). (ECF No. 6.) 6 II. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 7 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre- 8 Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 9 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 10 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 11 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 12 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 13 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 14 the targets of frivolous or malicious suits need not bear the expense of responding.’” 15 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 16 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 17 “The standard for determining whether a plaintiff has failed to state a claim upon 18 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 19 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 20 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 21 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 22 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 23 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 24 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 25 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 26 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 27 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 28 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 1 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 2 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 3 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 4 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 5 (9th Cir. 2009). 6 A. 42 U.S.C. § 1983 7 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 8 privileges, or immunities secured by the Constitution and laws” of the United States. 9 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must 10 allege two essential elements: (1) that a right secured by the Constitution or laws of the 11 United States was violated, and (2) that the alleged violation was committed by a person 12 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of 13 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 14 B. Waived Defendant 15 Plaintiff initially named Defendant San Diego Central Jail in his original 16 Complaint. (ECF No. 1.) However, on May 14, 2019, the Court dismissed the claims 17 against Defendant San Diego Central Jail for failing to state a claim pursuant to 28 U.S.C. 18 § 1915(e)(2) & § 1915A. (ECF No. 5 at 10.) Plaintiff was cautioned that any 19 “[d]efendants not named and any claim not re-alleged in his Amended Complaint will be 20 considered waived.” (Id. citing S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 21 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 22 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 23 (noting that claims dismissed with leave to amend which are not re-alleged in an 24 amended pleading may be “considered waived if not repled.”). 25 In his FAC, Plaintiff no longer San Diego Central Jail as a Defendant. Thus, the 26 Court finds that Plaintiff has waived all claims against this Defendant and DISMISSES 27 Defendant San Diego Central Jail from this action. 28 1 C. Remaining Claims 2 However, the Court finds Plaintiff’s FAC contains allegations against the 3 remaining Defendants sufficient to survive the “low threshold” for proceeding past the 4 sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 5 680 F.3d at 1123. Accordingly, the Court will direct U.S. Marshal service upon the 6 remaining Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the 7 court shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. 8 CIV. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal 9 or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 10 U.S.C. § 1915.”). 11 III. Conclusion and Order 12 Accordingly, the Court: 13 1. DISMISSES all claims against Defendant San Diego Central Jail as waived 14 and the Clerk of Court is directed to terminate this Defendant from the docket; and 15 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 6) 16 as to the remaining Defendants and forward it to Plaintiff along with a blank U.S. 17 Marshal Form 285 for Defendants. In addition, the Clerk will provide Plaintiff with a 18 certified copy of the Court’s May 14, 2019 Order granting IFP status, a certified copy of 19 his FAC and the summons so that he may serve these Defendants. Upon receipt of this 20 “IFP Package,” Plaintiff must complete the Form 285s as completely and accurately as 21 possible, include an address where each named Defendant may be found and/or subject 22 to service, and return them to the United States Marshal according to the instructions the 23 Clerk provides in the letter accompanying his IFP package. 24 3. ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon 25 the remaining named Defendants as directed by Plaintiff on the USM Form 285s 26 provided to him. All costs of that service will be advanced by the United States. See 28 27 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 28 1 4. ORDERS Defendants, once they have been served, to reply to Plaintiff's 2 within the time provided by the applicable provisions of Federal Rule of Civil 3 || Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 4 || permitted to “waive the right to reply to any action brought by a prisoner confined in any 5 prison, or other correctional facility under section 1983,” once the Court has 6 || conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 7 || and thus, has made a preliminary determination based on the face on the pleading alone 8 || that Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is 9 required to respond); and 10 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 11 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’ 12 counsel, a copy of every further pleading, motion, or other document submitted for the 13 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 14 || original document he seeks to file with the Clerk of the Court, a certificate stating the 15 manner in which a true and correct copy of that document has been was served on 16 || Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 17 ||document received by the Court which has not been properly filed with the Clerk or 18 || which fails to include a Certificate of Service upon Defendants may be disregarded. 19 IT IS SO ORDERED. 20 Dated: September 10, 2019 € ZL 21 Hon. Cathy Ann Bencivengo 22 United States District Judge 23 24 25 26 27 28