United States District Court, S.D. California
DAVID B. TURNER, JR., Inmate Booking No. 13719099, Plaintiff,
GEORGE BAILEY DETENTION FACILITY; DOE NURSE; 1-5 DOES; CAPTAIN MADSON; 1 NURSE; 5 DOES; SERGEANT FARRIS; 3 JOHN DOES; Defendants.
ORDER: (1) SUA SPONTE DISMISSING CLAIMS AND DEFENDANTS FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b);
(2) DISMISSING CLAIMS FOR FAILING TO EXHAUST ADMINISTRATIVE REMEDIES; AND (3)
DIRECTING UNITED STATES MARSHAL TO EFFECT SERVICE ON REMAINING DEFENDANTS
ROGER T. BENITEZ, District Judge.
I. PROCEDURAL HISTORY
On September 6, 2013, Plaintiff, David B. Turner, Jr., currently housed at the George Bailey Detention Facility, filed a civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) In addition, Plaintiff later filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (ECF No. 3.)
On November 1, 2013, this Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim upon which relief could be granted. (ECF No. 5.) Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified in the Court's Order. ( Id. ) On November 12, 2013, Plaintiff filed his First Amended Complaint ("FAC"). (ECF No. 6.) Once again, the Court dismissed Plaintiff's First Amended Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) & 1915A(b). (ECF No. 7.) Plaintiff was again granted leave to file an Amended Complaint to attempt to correct the deficiencies of pleading. ( Id. at 9.) Plaintiff has now filed a Second Amended Complaint ("SAC") which the Court finds contains some claims that survive the sua sponte screening process. However, the Second Amended Complaint does not correct many of the deficiencies of pleading identified by the Court on two prior occasions and Plaintiff raises new claims that clearly arose several months after the filing of the original Complaint. Plaintiff was not given leave to file new claims nor are these new claims exhausted as required by 42 U.S.C. § 1997e as they arose after the filing of the original Complaint.
In addition, Plaintiff no longer names as Defendants "2-5 Does, 1 Doe Nurse, 1 Nurse or 5 Does" in his Second Amended Complaint. ( See SAC, ECF No. 8, at 1-2.) Plaintiff was cautioned in the Court's previous Orders that any Defendant not renamed in the Second Amended Complaint "will be considered waived." ( Id. citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Accordingly, Defendants 2-5 Does, 1 Doe Nurse, 1 Nurse and 5 Does are DISMISSED from this action.
II. SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) and § 1915A
As the Court informed Plaintiff in the previous Orders, 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) & 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) & 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).
Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 324 (1989). However, 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before effecting service of the Complaint by the U.S. Marshal pursuant to Federal Rule of Civil Procedure 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 28 U.S.C. § 1915A).
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases, " Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
B. Deliberate Indifference to Serious Medical Needs Claims
Here, the Court finds Plaintiff's allegations relating to deliberate indifference to a serious medical need found in "Count 1" and "Count 2" as to Defendants Captain Madson and Sergeant Farris sufficient to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27. 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 ...