Smith v. Avalos

• Court: District Court, S.D. California
• Decided: April 25, 2023
• Docket: 3:20-cv-01534
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARQUELL SMITH, Case No.: 3:20-cv-01534-JAH-KSC CDCR #H-83007, 12 ORDER: Plaintiff, 13 vs. 1) DISMISSING DEFENDANTS AS 14 WAIVED; AND

15 MS. AVALOS, Law Library Coordinator; 2) DIRECTING U.S. MARSHAL TO 16 JOHN/JANE DOE, Medical Supervisor; EFFECT SERVICE OF THIRD 17 JOHN/JANE DOE, AMENDED COMPLAINT AND 18 Defendants. SUMMONS PURSUANT TO 28 U.S.C. § 1915(d) AND 19 Fed. R. Civ. P. 4(c)(3) 20 21 22 I. Procedural History 23 On August 6, 2020, Marquell Smith (“Plaintiff”), a state inmate currently housed at 24 the California State Prison – Los Angeles County located in Lancaster, California and 25 proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., 26 ECF No. 1). Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) 27 when he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis 28 (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), along with a Motion to Appoint 1 Counsel (ECF No. 3). In his original Complaint, Plaintiff alleged his constitutional rights 2 were violated when he was previously housed in the San Diego Central Jail, George Bailey 3 Detention Facility, and the Vista Detention Facility in 2020. (See Compl. at 1.) 4 On August 19, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP, 5 DENIED Plaintiff’s Motion to Appoint Counsel and DISMISSED Plaintiff’s Complaint 6 for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. 7 § 1915(e)(2) & 28 U.S.C. § 1915A(b). (See Aug. 19, 2020 Order, ECF No. 4.) Plaintiff 8 was granted leave to file an amended complaint to correct the deficiencies of pleading 9 identified in the Court’s Order. (See id.) On October 19, 2020, Plaintiff filed his First 10 Amended Complaint (“FAC”), along with a Motion to Appoint Counsel. (See FAC, ECF 11 No. 5; Pl.’s Mot., ECF No. 7.) 12 Once again, the Court conducted the required sua sponte screening and DISMISSED 13 Plaintiff’s FAC for failing to state a claim upon which relief could be granted pursuant to 14 28 U.S.C. § 1915(e)(2) & 28 U.S.C. § 1915A(b) and DENIED Plaintiff’s Motion to 15 Appoint Counsel. (See Nov. 25, 2020 Order, ECF No. 9.) 16 On December 14, 2020, Plaintiff filed what was purportedly a Second Amended 17 Complaint (“SAC”) but it did not contain any factual allegations. (See ECF No. 10.) 18 Instead, attached to Plaintiff’s purported SAC was a “Motion to Alter Judgment.” (See id.) 19 In addition, Plaintiff filed a third Motion to Appoint Counsel. (See ECF No. 12.) The 20 Court DENIED Plaintiff’s Motion to Appoint Counsel, DENIED his Motion to Alter 21 Judgment, and DISMISSED his SAC for failing to state a claim pursuant to 28 U.S.C. 22 § 1915(e)(2) & 28 U.S.C. § 1915A(b). (See ECF No. 13.) 23 Plaintiff filed an Appeal to the Ninth Circuit Court of Appeals. (See ECF No. 15.) 24 On March 18, 2022, the Ninth Circuit issued an Order which reversed this Court’s 25 dismissal of the First Amendment access to courts claim against Defendant Avalos and 26 ordered the Court to permit Plaintiff leave to amend his Eighth Amendment medical care 27 claims. (See ECF No. 19.) On March 28, 2022, Plaintiff filed a “Motion Requesting 28 1 Extension of Time for Leave to Amend [Eighth] Amendment Claim and Appointment of 2 Counsel.” (ECF No. 20.) 3 Accordingly, the Court VACATED the judgment, see ECF No. 14, entered on 4 February 4, 2021. The Court granted Plaintiff leave to file a Third Amended Complaint in 5 which he was informed that he must re-allege his First Amendment claims against 6 Defendant Avalos and correct the deficiencies identified in the Court’s February 4, 2021 7 and November 25, 2020 Orders as to his Eighth Amendment claims. (ECF No. 21.) 8 After receiving an extension of time, Plaintiff has now filed his Third Amended 9 Complaint (“TAC”). (ECF No. 26. ) In his TAC, Plaintiff no longer names Defendants S. 10 Jackson, William D. Gore, Mr. Finley, Sergeant Kimberly, John/Jane Doe “Sgt/Lt,” 11 John/Jane Doe “Sgt/Lt,” Lieutenant Cardenas, and Sergeant Ward. (See id.) Thus, the 12 claims against these Defendants are deemed waived and the Clerk of Court is directed to 13 terminate these Defendants from the Court’s docket. See S.D. Cal. CivLR 15.1; Hal Roach 14 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 15 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 16 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 17 in an amended pleading may be “considered waived if not repled.”). 18 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 19 A. Standard of Review 20 Because Plaintiff is a prisoner and is proceeding IFP, his TAC also requires a 21 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 22 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 23 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 24 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 26 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 27 the targets of frivolous or malicious suits need not bear the expense of responding.’” 28 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 5 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 13 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 14 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 15 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 16 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 17 B. Discussion 18 As currently pleaded, the Court finds Plaintiff’s TAC alleges plausible First and 19 Eighth Amendment claims against Defendants sufficient to survive the “low threshold” set 20 for sua sponte screening as required by 28 U.S.C. § 1915(e)(2) and § 1915A(b). See 21 Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Lewis v. Casey, 518 U.S. 343, 346 22 (1996) (Prisoners have a constitutional right to access to the courts); Estelle v. Gamble, 429 23 U.S. 97, 104 (1976) (Deliberate indifference to an inmate’s serious medical need violates 24 the Eighth Amendment). 25 Therefore, the Court will order the U.S. Marshal to effect service upon remaining 26 Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 27 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) 28 (“[T]he court may order that service be made by a United States marshal or deputy marshal 1 . . . if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 2 III. Conclusion and Order 3 For the reasons explained, the Court: 4 (1) DISMISSES Defendants S. Jackson, William D. Gore, Mr. Finley, Sergeant 5 Kimberly, John/Jane Doe “Sgt/Lt,” John/Jane Doe “Sgt/Lt,” Lieutenant Cardenas, and 6 Sergeant Ward as waived and directs the Clerk of Court to terminate these Defendants from 7 the Court’s docket; 8 (2) DIRECTS the Clerk to issue a summons as to Plaintiff’s TAC (ECF No. 26) 9 upon remaining Defendants, and forward it to Plaintiff along with blank U.S. Marshal Form 10 285s for these Defendants. In addition, the Clerk will provide Plaintiff with a certified copy 11 of his TAC and the summons so that he may serve Defendants. Upon receipt of this “IFP 12 Package,” Plaintiff must complete the USM Form 285s as completely and accurately as 13 possible, include addresses where Defendants may be found and/or subject to service 14 pursuant to S.D. Cal. CivLR 4.1c., and return them to the U.S. Marshal according to the 15 instructions the Clerk provides. 16 (3) ORDERS the U.S. Marshal to serve a copy of the TAC and summons upon 17 Defendants as directed by Plaintiff on the USM Form 285s provided, and to file executed 18 waivers of personal service upon each of these Defendants with the Clerk of Court as soon 19 as possible after their return. Should any of these Defendants fail to return the U.S. 20 Marshal’s request for waiver of personal service within 90 days, the U.S. Marshal shall 21 instead file the completed Form USM 285 Process Receipt and Return with the Clerk of 22 Court, include the date the summons, TAC, and request for waiver was mailed to that 23 Defendant, and indicate why service upon that party remains unexecuted. All costs of U.S. 24 Marshal service will be advanced by the United States; however, if a Defendant located 25 26 27 1 Plaintiff is cautioned 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. 28 1 || within the United States fails, without good cause, to sign and return the waiver requested 2 the Marshal on Plaintiff's behalf, the Court will impose upon that Defendant any 3 || expenses later incurred in making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. 4 ||P. 4(c)(3), (d)(2). 5 (4) ORDERS Defendants, once served, to reply to Plaintiffs TAC, and any 6 || subsequent pleading he may file in this matter in which they are named as parties, within 7 ||the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a) 8 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be 9 || permitted to “waive the right to reply to any action brought by a prisoner confined in any 10 prison, or other correctional facility under section 1983,” once the Court has conducted 11 |/its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has 12 ||}made a preliminary determination based on the face of the pleading alone that Plaintiff has 13 “reasonable opportunity to prevail on the merits,” Defendants are required to respond). 14 (5) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 15 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 16 ||counsel, a copy of every further pleading, motion, or other document submitted for the 17 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 18 original document he seeks to file with the Clerk of the Court, a certificate stating the 19 ||manner in which a true and correct copy of that document was served on Defendants or 20 || their counsel, and the date of that service. See S.D. Cal.CivLR 5.2. 21 IT IS SO ORDERED. 22 || Dated: April 25, 2023 23 M&S 24 Han. John A. Houston 5 Aited States District Judge 26 27 28