Opinion
Civil No. 11 -cv-2534 BEN (JMA)
03-15-2012
RAMON LADALE SINEGAL, CDCR#J-95722, Plaintiff, v. H. VERDUZCO; C. ORTEGA; J. AGUIRRE; SGT. R. DIAZ, Defendants.
ORDER:
(1) DISMISSING DEFENDANTS GARCIA, DELGADO, SILVA, JANDA,
GUEVARA, CHIEF DEPUTY WARDEN AND MIRELES; AND
(2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST
AMENDED COMPLAINT PURSUANT TO fed. R. CIV. P. 4( c)(3) & 28 U.S.C. § 1915(d)
I. PROCEDURAL HISTORY
On October 31, 2011, Plaintiff, a state inmate currently incarcerated at Calipatria State Prison in Calipatria, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C, § 1983, a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) and a Motion for Temporary Restraining Order.
On November 28,2011, the Court granted Plaintiffs Motion to Proceed IFP, denied Plaintiffs Motion for Temporary Restraining Order and dismissed the action for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See Nov. 28,2011 Order, at 6. Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. On January 6, 2012, Plaintiff filed his First Amended Complaint ("FAC"). II. Screening Pursuant to 28 U.S.C. §§ 1915 (e)(2) & 1915A (b)
The Prison Litigation Reform Act ("PLRA") requires the Court to review Plaintiffs Amended Complaint sua sponte before service, and dismiss the entire action, or any part of his Amended Complaint, if it is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A.
In the Court's November 28, 2011 Order, Plaintiff was cautioned that any Defendants not renamed or claims not realleged in his First Amended Complaint would be deemed waived. See Nov. 28,2011 Order at 6 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Plaintiff has filed a First Amended Complaint, but he no longer names as Defendants Garcia, Delgado, Silva, Janda, Guevara, Chief Deputy Warden/Hiring Authority or Mireles. Thus, those Defendants are DISMISSED from this action. King, 814 F.2d at 567.
The Court finds that the claims in Plaintiff s Amended Complaint as to the remaining Defendants are sufficiently pleaded to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, the Court will direct U.S. Marshal service on his behalf. Fed. R. Civ. P. 4(c)(3). Plaintiff is cautioned, however, 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).
III. Conclusion and Order
Good cause appearing therefor, IT IS HEREBY ORDERED that;
1. The claims against Defendants Garcia, Delgado, Silva, Janda, Guevara, Chief Deputy Warden/Hiring Authority and Mireles are DISMISSED without prejudice. King, 814 F.2d at 567. The Clerk of Court is directed to terminate these Defendants from the docket.
2. The Clerk shall issue a summons as to Plaintiffs First Amended Complaint [ECF No. 5] upon the remaining Defendants, and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff with a copy of this Order, the Court's November 28,2011 Order granting Plaintiff leave to proceed IFP [ECF No. 4], and copies of his First Amended Complaint and the summons for purposes of serving each Defendant. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285 s as completely and accurately as possible, and to return them to the U.S. Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP Package. Thereafter, the U.S. Marshal shall serve a copy of the First Amended Complaint and summons upon each Defendant as directed by Plaintiff on each Form 285. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3).
3. Plaintiff shall serve upon Defendants or, if appearance has been entered by counsel, upon Defendants' counsel, a copy of every further pleading or other document submitted for consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of any document was served on Defendants, or counsel for Defendants, and the date of service. Any paper received by the Court which has not been filed with the Clerk or which fails to include a Certificate of Service will be disregarded.
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HON. ROGER T. BENITEZ
United States District Court Judge