The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER: (1) DISMISSING CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2); and (2) 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) UPON REMAINING DEFENDANTS
On August 31, 2010, Plaintiff, proceeding pro se, filed a civil action pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis ("IFP). At the time Plaintiff initially filed this action he was not incarcerated. Before the Court could rule on Plaintiff's IFP Motion and screen his Complaint, Plaintiff filed a First Amended Complaint. Since the filing of this action, Plaintiff has been in and out of the custody of the California Department of Corrections and Rehabilitation ("CDCR") more than once, and according to his latest notice of change of address [ECF No. 53] Plaintiff is currently housed in the San Diego Central Jail. The allegations giving rise to Plaintiff's action are based on events that occurred while he was housed at the Richard J. Donovan Correctional Facility ("Donovan").
On March 9, 2011, the Court issued an Order granted Plaintiff's Motion to Proceed IFP and found that many of the claims in Plaintiff's First Amended Complaint failed to state a claim upon which relief could be granted. Plaintiff was given the option to either proceed with the claims that survived the sua sponte screening process or file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. After requesting several extensions of time to file his Second Amended Complaint, which were granted by the Court, Plaintiff filed his Second Amended Complaint ("SAC") on August 10, 2011 [ECF No. 35].
On December 28, 2011, the Court conducted the required sua sponte screening on Plaintiff's Second Amended Complaint. The Court found that some of Plaintiff's claims survived screening. Plaintiff was given the option of notifying the Court of his intention to proceed with the claims that survived screening or he could file a Third Amended Complaint in order to correct the deficiencies of pleading identified by the Court. See Dec. 28, 2011 Order at 5. On January 6, 2012, Plaintiff notified the Court of his intention to proceed with the claims that survived the screening process and he would not be filing an Amended Complaint. [ECF No. 62].
II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2)
As stated by the Court in its previous Orders, any complaint filed by a person proceeding IFP is subject to sua sponte dismissal by the Court to the extent it contains claims which are "frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.").
In the Court's December 28, 2011 Order, the Court noted that Plaintiff failed to re-allege claims against a number of Defendants and thus, these Defendants were dismissed from this action. However, upon further review, the Court also finds that Plaintiff has failed to re-allege any claims against Defendant Cate in his Second Amended Complaint. Thus, the Court finds that Plaintiff has waived all claims against Defendant Cate and he is DISMISSED from this action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
B. Waiver of claims and Defendants
In his response to the Court's December 28, 2011 Order, Plaintiff has indicated that he intends to proceed with the claims that the Court has determined survive sua sponte screening. Accordingly, all the claims dismissed by the Court in the December 28, 2011 are no longer part of this action and remain dismissed.
In addition, Plaintiff, by foregoing the filing of a Third Amended Complaint, has waived all claims against Defendants Contreras, Olson, Gonzalez, Nelson and Vasquez. Thus, those Defendants are DISMISSED from this action.
III. Conclusion and Order
Good cause appearing, IT IS ...