(PC) Salcido v. Warden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL SALCIDO, Case No.: 3:19-cv-01420-LAB-JLB CDCR #J-81054, 12 ORDER DIRECTING U.S. Plaintiff, 13 MARSHAL TO EFFECT SERVICE vs. OF FIRST AMENDED COMPLAINT 14 UPON DEFENDANTS PURSUANT

15 TO 28 U.S.C. § 1915(d) AND Fed. R. WARDEN PARAMO; CHIEF MEDICAL Civ. P. 4(c)(3) 16 OFFICER; PUGA; C/O SANCHEZ; 17 UNITED RENTALS ATV; SGT. ALVAREZ; CDCR APPEALS 18 COORDINATOR; C/O CRAWFORD, 19 Defendants. 20 21 22 23 I. Procedural History 24 Paul Salcido (“Plaintiff”), a prisoner currently incarcerated at the California Medical 25 Facility (“CMF”) located in Vacaville, California, and proceeding pro se, initially filed a 26 civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 in the Eastern District of 27 California. On July 29, 2019, United States Magistrate Judge Stanley A. Boone determined 28 that the events giving rise to the claims found in Plaintiff’s Complaint occurred when he 1 was previously housed at the Richard J. Donovan Correctional Facility (“RJD”) and 2 transferred the entire action to the Southern District of California. (ECF No. 2.) 3 Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) to commence 4 a civil action at the time he filed his Complaint; instead, he later filed a Motion to Proceed 5 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 6.) 6 On August 28, 2019, this Court GRANTED Plaintiff’s Motion to Proceed IFP and 7 simultaneously DISMISSED his Complaint for failing to state a claim upon which relief 8 could be granted pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A. (See ECF No. 7 at 8-9.) 9 Plaintiff was granted leave to file an amended pleading in order to correct the deficiencies 10 of pleading identified in the Court’s Order. (See id.) Plaintiff was cautioned that 11 “[d]efendants not named and any claim not re-alleged in his Amended Complaint will be 12 considered waived.” (Id. citing See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. 13 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 14 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 15 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 16 pleading may be “considered waived if not repled.”).) 17 On January 7, 2020, Plaintiff filed his First Amended Complaint (“FAC”). (See ECF 18 No. 11.) The Court, once again, conducted the required sua sponte screening and dismissed 19 all claims against Defendants Paramo, Puga, Alvarez, United Rentals AV, and CDCR 20 Appeals Director for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 21 § 1915A(b). (See ECF No. 4-7.) However, the Court found that the Eighth Amendment 22 claims as to Defendants Sanchez and Crawford survived the sua sponte screening required 23 by 28 U.S.C. § 1915(e)(2) and § 1915A(b). (Id. at 7.) The Court gave Plaintiff the option 24 of filing a Second Amended Complaint in an attempt to cure the problems the Court found 25 in Plaintiff’s pleading or proceed with his FAC as to his Eighth Amendment claims only 26 and have the Court direct the United States Marshals Service (“USMS”) to effect service 27 upon Defendants Sanchez and Crawford. (Id.) 28 1 On March 10, 2020, Plaintiff filed a notice with the Court that it is his “intention to 2 proceed with the claims against Defendants Sanchez and Crawford only.” (ECF No.14 at 3 3.) Therefore, the Court will order the USMS to effect service of Plaintiff’s Complaint on 4 Defendants Sanchez and Crawford only. See 28 U.S.C. § 1915(d) (“The officers of the 5 court shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. 6 P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal or 7 deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 8 § 1915.”). 9 II. Conclusion and Orders 10 For the reasons discussed, the Court: 11 1) DISMISSES all claims against Paramo, Puga, Alvarez, United Rentals AV, 12 and CDCR Appeals Director for the reasons set forth in the Court’s January 29, 2020 Order. 13 2) DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 10) 14 and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendants 15 Sanchez and Crawford. In addition, the Clerk will provide Plaintiff with a certified copy of 16 the August 28, 2019 Order granting Plaintiff IFP status, a certified copy of his FAC, and 17 the summons so that he may serve Defendants Sanchez and Crawford. Upon receipt of 18 this “IFP Package,” Plaintiff must complete the Form 285s as completely and accurately 19 as possible, include an address where each named Defendant may be served, see S.D. CAL. 20 CIVLR 4.1.c, and return them to the USMS according to the instructions the Clerk provides 21 in the letter accompanying his IFP package; 22 3) ORDERS the USMS to serve a copy of the Complaint and summons upon 23 Defendants Sanchez and Crawford as directed by Plaintiff on the USM Form 285 provided 24 to him. All costs of that service will be advanced by the United States. See 28 U.S.C. 25 § 1915(d); FED. R. CIV. P. 4(c)(3); and 26 4) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 27 serve upon Defendants or, if appearance has been entered by counsel, upon Defendants’ 28 counsel, a copy of every further pleading, motion, or other document submitted for the 1 || Court’s consideration pursuant to FED. R. Civ. P. 5(b). Plaintiff must include with every 2 || original document he seeks to file with the Clerk of the Court, a certificate stating the 3 ||manner in which a true and correct copy of that document has been was served on 4 || Defendants or Defendants’ counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. 5 || Any document received by the Court which has not been properly filed with the Clerk, or 6 || which fails to include a Certificate of Service upon the Defendant, may be disregarded. 7 IT IS SO ORDERED. 8 Dated: April 6, 2020 Camu 44 (buy Wy 9 HON. LARRY ALAN BURNS, CHIEF JUDGE 10 United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 a