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Paul Adams v. Larry Small; J. Tim Ochoa; Aceves; Waters

March 30, 2011

PAUL ADAMS,
PLAINTIFF,
v.
LARRY SMALL; J. TIM OCHOA; ACEVES; WATERS; ANAYA; SILVA; TRUJILLO; CATE; WILKINS; FOSTON; DOES 1 - 50,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

CDCR #F-92755,

ORDER:

(1) DISMISSING DEFENDANTS CDCR, STATE OF CALIFORNIA, DIRECTOR OF CORRECTIONS AND UNITED STATES OF AMERICA; (2) GRANTING PLAINTIFF'S MOTION TO SERVE SUMMONS AND DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SECOND AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d)

I. PROCEDURAL HISTORY

On June 4, 2010, Plaintiff, Paul Adams, a state prisoner currently incarcerated at Ironwood State Prison located in Blythe, California and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff also filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). On June 28, 2010, the Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim. See June 28, 2010 Order at 5-6. On December 1, 2010, Plaintiff filed his First Amended Complaint ("FAC"). Once again, the Court conducted a sua sponte screening and dismissed his First Amended Complaint for failing to state a claim. See Feb. 9, 2011 Order at 6. Plaintiff filed his Second Amended Complaint ("SAC") on March 2, 2011.

II. SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A

As the Court stated in its previous Orders, the Prison Litigation Reform Act ("PLRA") 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) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks 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 (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. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). 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 effecting service of the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]section 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 28 U.S.C. § 1915A).

"[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 addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

In his Second Amended Complaint, Plaintiff no longer names the CDCR, the State of California, the Director of Corrections, or the United States of America as Defendants in this matter. The Court informed Plaintiff in its February 9, 2011 Order that any Defendant not renamed and all claims not re-alleged in the Second Amended Complaint would be deemed to have been waived. See Feb. 9, 2011 Order at 6 (citing See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Thus, these Defendants are DISMISSED from this action.

As for the remainder of Plaintiff's Amended Complaint, the Court finds that Plaintiff's claims are now sufficiently pleaded to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is 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)(3) ("[T]he court may order that service be made by a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 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 therefor, IT IS HEREBY ORDERED that:

1. Defendants CDCR, the State of California, the Director of Corrections, or the United States of America are DISMISSED from this action pursuant to 28 U.S.C. ยงยง 1915(e)(2) and 1915A(b). The Clerk of Court is ...


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