The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DIRECTING U.S. MARSHAL TO EFFECT COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) , & 28 U.S.C. § 1915(d) SERVICE OF FIRST AMENDED
On December 11, 2012, Plaintiff, an inmate currently housed in the Vista Detention Facility located in Vista, 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 January 8, 2013, the Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim. (ECF No. 3 at 5-6.) Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. (Id. at 6.) Plaintiff was also cautioned that any "Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived." (Id. citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
On March 18, 2013, Plaintiff filed his First Amended Complaint ("FAC"). (ECF No. 9.) In his First Amended Complaint, Plaintiff no longer names Sanford Toyen as a Defendant. Thus, Plaintiff has waived his claims against this Defendant and he is dismissed from this action. King, 814 F.3d at 567.
SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A
As the Court stated in its 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, 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
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).
Good cause appearing therefor, IT IS HEREBY ORDERED that:
1. Defendant Sanford Toyen is DISMISSED from this action. The Clerk of Court is directed to terminate ...