The opinion of the court was delivered by: Hon. Irma E. Gonzalez, Chief Judge United States District Court
(1) SUA SPONTE DISMISSING DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(e)(2); AND
(2) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO R. FED.R.CIV.P.12(b)(6) [ECF No. 43]
On March 26, 2010, Andre Jones ("Plaintiff") initially filed his original Complaint [ECF No. 1] in the Central District of California. At the time Plaintiff initially filed his Complaint he was represented by counsel. On September 10, 2011, Plaintiff's counsel, Leon P. Gilbert, was relieved as counsel of record [ECF No. 12]. On February 8, 2011, United States District Judge Jacqueline H. Nguyen determined that venue was proper in the Southern District of California and transferred the matter to this Court [ECF No. 16].
On March 7, 2011, this Court issued an Order to Show Cause why the case should not be dismissed for failing to effect service on any of the Defendants pursuant to FED.R.CIV.P. 4(m) [ECF No. 19]. Plaintiff then filed a Motion to file an amended complaint, as well as a Motion for U.S. Marshal Service [ECF Nos. 21, 25]. On April 26, 2011, Plaintiff filed his First Amended Complaint ("FAC") [ECF No. 29]. This Court then issued an Order directing the U.S. Marshal Service to effect service of summons and Plaintiff's First Amended Complaint [ECF No. 30].
Defendants Bradford, Cash, Cavazos, Cortez, Cruz, David Buechter, Dottaviano, Goff, Homer, Ridgeway and Watson*fn1 have filed a Motion to Dismiss Plaintiff's First Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) [ECF No. 43]. Plaintiff has filed his Opposition to which Defendants have filed a Reply [ECF Nos. 44, 45]. The Court permitted Plaintiff to file a sur Reply [ECF No. 48].
The Court has determined that Defendants' Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Barbara Lynn Major is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).
As an initial matter, the Court notes that Plaintiff has failed to rename Defendants California Department of Corrections and Rehabilitation, Richard J. Donovan Correctional Facility, California State Prison - Los Angeles, and Morrero in his First Amended Complaint. Thus, the claims against these Defendants have been waived and these Defendants are DISMISSED from this action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
III. PLAINTIFF'S FACTUAL ALLEGATIONS
Plaintiff was initially housed at California State Prison, Lancaster on January 25, 2007. (See FAC at 5.) Plaintiff was placed in "ad-seg" for safety concerns. (Id.). Plaintiff went to the Institution Classification Committee ("ICC") and informed Defendants Cash, Cruz, Bradford, Dottaviano and Davis Buechter that he had "enemy concerns" and "could not be transferred to Donovan State Prison." (Id.) Plaintiff claims he was transferred to the Richard J. Donovan Correctional Facility ("Donovan") after his pleas and grievances were "ignored." (Id.)
Once Plaintiff arrived at Donovan, he informed Defendants Cortez, Homer and Cavazos, members of Donovan's ICC, of his safety concerns but claims he was lead to believe that his safety was not longer "at risk." (Id.) As a result, Plaintiff withdrew his administrative grievance. However, at the same time, Plaintiff requested that "Inmate McCloud" be placed on his enemy list. (Id.) Plaintiff alleges that his correctional counselor, Defendant Goff, failed to make this notation in Plaintiff's ...