The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DISMISSING DEFENDANTS AND DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST AMENDED COMPLAINT
On December 20, 2010, Hoang Minh Tran ("Plaintiff"), a state prisoner currently incarcerated at California Men's Colony located in San Luis Obispo, California, and proceeding in pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis ("IFP").
Plaintiff was granted leave to proceed IFP but the Court dismissed the claims against Defendants Gore and Shroeder pursuant to 28 U.S.C. § 1915(e)(2) & 1915A. See May 23, 2011 Order at 4-5. Plaintiff was given the option of either notifying the Court of an intention to proceed on the surviving claims or file an Amended Complaint correcting the deficiencies of pleading identified by the Court. Id. at 5. Plaintiff chose to file an Amended Complaint [ECF No. 7].
II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)&1915A(b)
As stated in the Court's previous Order, 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 of the PLRA, the Court must sua sponte dismiss 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.
Plaintiff appears to attempt to correct the problems the Court previously found as to his claims against Defendants Gore and Schroeder. The Court found that the claims against these Defendants were based on respondeat superior liability which is not available under 42 U.S.C. § 1983. See May 23, 2011 Order at 3 (citing Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993)). "The 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).
Here, Plaintiff's First Amended Complaint is far from clear, but it appears that he is attempting to allege that there was a policy to deprive a person who is alleged to have made an escape attempt their constitutional rights. (See FAC at 7.) As the Court previously stated, supervisory prison officials may only be held liable for the allegedly unconstitutional violations of a subordinate if Plaintiff sets forth allegations 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). "A plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948 (2009). There are no specific factual allegations as to either Gore or Schroeder in relation to these alleged policies. Plaintiff's First Amended Complaint will not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citing Bell Atlantic Corp v. Twombly, 550 U.S. 544, 557 (2007)).
Accordingly, the Court finds that Plaintiff's First Amended Complaint fails to set forth facts which might be liberally construed to support an individualized constitutional claim against Defendant Gore or Schroeder. Thus, Defendants Gore and Schroeder remain dismissed from this action.
As for the remaining claims against the remaining Defendants, the Court finds Plaintiff's allegations sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).*fn1 Accordingly, the Court finds Plaintiff is entitled to U.S. Marshal service on his behalf. See 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.").
III. Conclusion and Order
Good cause appearing therefor, IT IS HEREBY ORDERED that:
1. Defendants Gore and Schroeder are DISMISSED from this action pursuant to 28 U.S.C. § 1915(e)(2) & 1915A.
2. The Clerk shall issue a summons as to Plaintiff's First Amended Complaint [ECF No. 7] upon the remaining Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. In addition, the Clerk shall provide Plaintiff with a certified copy of the Order granting his Motion to Proceed IFP and a certified copy of his First Amended Complaint and the summons so that he may serve 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. Upon receipt, the U.S. Marshal shall serve a copy of the First Amended ...