Free Order - District Court of California - California

Case 3:08-cv-00078-H-AJB

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
JORGE GAUDARRAMA, CDCR #P-54739, Plaintiff,
Civil No.

08-0078 H (AJB)

ORDER: (1) DISMISSING CLAIMS FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b); AND (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(2) AND 28 U.S.C. § 1915(d)

vs.

THE STATE OF CALIFORNIA, et al.,

Defendants.

I.

PROCEDURAL HISTORY On January 14, 2008, Plaintiff, a state inmate currently incarcerated at Calipatria State

Prison and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. On February 4, 2008, this Court granted Plaintiff's Motion to Proceed IFP and denied Plaintiff's Motion for Appointment of Counsel. This Court later sua sponte dismissed Plaintiff's Complaint
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for failing to state a claim but granted Plaintiff leave to file an Amended Complaint to correct the deficiencies of pleading identified by the Court. See Feb. 20, 2008 Order at 7. Rather than filing an Amended Complaint, Plaintiff filed a Notice of Appeal with the Ninth Circuit Court of Appeals [Doc. No. 8]. This appeal was later dismissed because the Order challenged in the appeal was deemed not a final order. See Order of the United States Court of Appeals for the Ninth Circuit dated April 18, 2008 [Doc. No. 20]. Plaintiff then filed his First Amended Complaint ("FAC") [Doc. No. 19] on April 25, 2008. II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) As the Court previously stated in its February 4, 2008 Order, the Prison Litigation Reform Act ("PLRA")'s amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A). Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28 U.S.C. § 1915(e)(2) and § 1915A now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before directing that the Complaint be served by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). ////
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"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In his First Amended Complaint, Plaintiff is alleging that his Eighth Amendment right to adequate medical care was violated when prison officials "maliciously approached and/or harassed Plaintiff about his hand splints." (FAC at 8.) Plaintiff claims that the failure to treat his serious medical condition led to "swelling, excruciating intolerable, and very severe pain" in his hands. Plaintiff seeks to hold Defendants Tilton, Scribner, Levin, Ball, Gray and Correa liable for the alleged constitutional violations "under the doctrine of supervisory liability." (Id. at 11.) However, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As supervisors, these Defendants may only be held liable for the allegedly unconstitutional violations of a subordinate if Plaintiff alleges specific facts which show: (1) how or to what extent they personally participated in or directed a subordinate's actions, and (2) in either acting or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff's constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however, Plaintiff's Complaint fails to set forth facts which might be liberally construed to support an individualized constitutional claim against Defendants Tilton, Scribner,

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Levin, Ball, Gray and Correa and thus, these Defendants are dismissed from this action.1 As to the remaining Defendants, the Court finds that Plaintiff's Eighth Amendment claims in his First Amended Complaint survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and that Plaintiff is therefore entitled to U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in [IFP] cases."); FED.R.CIV.P. 4(c)(2) (providing that "service be effected by a United States marshal, deputy Untied States marshal, or other officer specially appointed by the court ... when the plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915."). 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, IT IS HEREBY ORDERED: 1. Defendants State of California, Tilton, Scribner, Levin, Ball, Gray and Correa are

DISMISSED from this action because Plaintiff failed to state a claim as to these Defendants upon which 1983 relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A. IT IS FURTHER ORDERED that: 2. The Clerk shall issue a summons upon the remaining Defendants and 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 certified copy of this Order, and certified copies of his First Amended Complaint and the summons for purposes of serving each of these Defendants. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to return them to the United States 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

Plaintiff did not rename Defendant State of California in his FAC. Thus, Plaintiff has waived the claims against this Defendant. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
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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)(2). 3. Defendants are thereafter ORDERED to reply to the First Amended Complaint

within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to "waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983," once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that Plaintiff has a "reasonable opportunity to prevail on the merits," Defendants are required to respond). 4. 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.

DATED: July 7, 2008

_________________________________________ HON. MARILYN L. HUFF United States District Judge

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