The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
1) GRANTING DEFENDANT GILL'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) (ECF Dkt. No. 19)
2) DISMISSING DEFENDANTS FOR FAILURE TO AMEND PROSECUTE
In this civil rights case, Hoang Minh Tran ("Plaintiff"), formerly incarcerated at George F. Bailey Detention Facility ("GFBDF") in San Diego, is proceeding in pro se and in forma pauperis ("IFP") pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a).
In his Amended Complaint (ECF Dkt. No. 7), Plaintiff alleges violations of his First, Eighth, and Fourteenth Amendment rights arising in August 2009 while he was a pretrial detainee at GFBDF.
Plaintiff names only the following Defendants: Brandt O. Pile (erroneously sued as "Pile Doe"), Wilson Doe, Brown Doe, John Gill, Jane Doe, M.D., Lizzie Womack, and Sarandi Marina. See Amend. Compl. (ECF Dkt No. 7) at 1, 4. All other persons listed in the caption of this case were either dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2) & 1915A(b), see May 23, 2012 Order (ECF Dkt. No. 4), or were named as Defendants in Plaintiff's original Complaint (ECF Dkt. No. 1), but not-renamed as parties in his Amended Complaint (ECF Dkt. No. 7). "[A]n amended pleading supersedes the original." Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). "All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted).
Defendants Pile, Marina and Womack have filed Answers to Plaintiff's Amended Complaint (ECF Dkt. Nos. 21, 22). However, the U.S. Marshal was unable to execute service upon Defendants "Brown Doe" and "Wilson Doe" because officials at GFBDF, where Plaintiff indicated they could be found, were "unable to identify" either official "due to multiple staff members with the same last name." (ECF Dkt. Nos. 11, 12.) The docket does not show service (either attempted, unexecuted, or executed) upon "Jane Doe, M.D." Thus, while Plaintiff's IFP status entitled him to U.S. Marshal service, his failure to either adequately identify Brown Doe, Wilson Doe, or Jane Doe, M.D., or otherwise provide the U.S. Marshal with more complete information as to their identities and where they might be served, requires dismissal of any claim as to these purported parties pursuant to FED.R.CIV.P. 4(m). See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (where a pro se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint, the court's sua sponte dismissal of the unserved defendants is appropriate).
Currently before the Court is Defendant Gill's Motion to Dismiss Plaintiff's First Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) (ECF Dkt. No. 7). Plaintiff has filed a Response in Opposition (ECF Dkt. No. 24), to which Defendant Gill has filed a Reply (ECF Dkt. No. 20).
Plaintiff divides the claims in his Amended Complaint into three "counts," each asserting factual allegations against different defendants, and each invoking various bases of constitutional injury. See Amend. Compl. at 2-3 ("Count 1"); 4-5 ("Count 2); and 6-8 ("Count 3").
In "Count 1", Plaintiff claims that on August 1, 2009, while he was a pretrial detainee at GFBDF, Deputies Brown and Wilson "deliberately deprived [him] of his hygiene items" which were necessary for his "well-being" and "sanitary clean[liness]." (Amend. Compl. at 2.) Subsequently, Plaintiff alleges to have complained to Defendant Pile, a Sergeant in the Administrative Segregation Module where he was housed, that Brown and Wilson had deprived him of the "welfare package" they had given every other inmate in order to retaliate against him for his "alleged role [i]n a high-profile escape by a similar[ly] named inmate" who had been "wrongfully released on 10/29/2008 under Plaintiff's wife's bail bond money." (Id.; see also Pl.'s Decl. [ECF Dkt. No. 7-2, 7-3].)*fn1 Plaintiff claims that "[a]lthough Pile agreed to give [him] a hygiene package," he never received one. (Amend. Compl. at 2.)*fn2 Plaintiff asserts that both his placement and the conditions in "solitary confinement" for "19 long days" imposed an "extraordinary hardship" upon him because he was unable to brush his teeth or wash, his administrative grievances went unanswered, and he was subjected to a "living hell on top of [his] frail health."*fn3 (Id. at 2, 7.)
In Count 2, Plaintiff alleges that from June 1, 2009 to August 6, 2009, Defendants "John Gill, M.D., Jane Doe M.D., Lizzie Womack and Sarandi Marina (R. Nurses)" "denied ... his external hemorrhoid medication (Docusate Sodium 100 mg)." (Amend. Compl. at 4.) Plaintiff alleges to have made "verbal complain[ts]" to the Administrative Segregation Unit (ASU) "Rover Deputies John Doe(s) 1-3" and "nurses" whose job it was to deliver daily medication to inmates. (Id.) Plaintiff also claims to have filed "written grievances on the matter to GFBDF supervisor[s] from the San Diego County Sheriff's Department." In support, Plaintiff points to his Exhibit B, which appears to be a copy of an San Diego County Sheriff's Department "Inmate Grievance/Appeal of Discipline" form dated August 6, 2009. (Pl.'s Ex. B [ECF Dkt. No. 7-1] at 5.) In this grievance, Plaintiff claims to have filed medical sick call requests "in the past more than fifty five days" asking to be "seen by a county health care physician." Plaintiff complains of both "chronic hemorrhoid exterior pain" and a "weak heart." (Id.) This form is marked "received by RN #6557" on August 7, 2009. (Id.) However, Plaintiff contends GFBDF officials "purposefully failed to act" in response to his grievances "for more than sixty-five (65) painful days." (Amend. Compl. at 4.)
During that time, Plaintiff again alleges "all of the named defendants," including several unidentified and unserved Does, denied him medication for his painful hemorrhoids, in violation of the Eighth and Fourteenth Amendments and "in retaliation" for the "deep public embarrassment" caused by his "alleged" role in another inmate's "high-profile escape." (Id. at 4-5.)
In "Count 3" Plaintiff alleges that on August 6, 2009, Deputies Brown and Wilson "unlawfully confiscated [his] personal property," including a Holy Bible, and denied his "rights to his Catholic religious practice," which caused him to suffer anxiety attacks and "severe emotional distress." (Amend. Compl. at 6.)
Plaintiff concludes that "all named defendants" named in Counts 1-3 deprived him of property, medical care, and "wrongfully confine[d]" in Ad-Seg without a hearing, and that "retaliation ... lie[s] at the heart of these unconstitutional acts." (Id. at 8.) Plaintiff seeks general and punitive damages as well as an injunction ...