United States District Court, E.D. California
For Christopher Simmons, Plaintiff: Scottlynn J. Hubbard, IV, LEAD ATTORNEY, Disabled Advocacy Group, APLCS, Chico, CA.
For CDCR, Defendant: Benjamin Robert Dore, Office of the Attorney General, Sacramento, CA.
ORDER DENYING REQUEST FOR SCREENING AND REQUEST TO VACATE SUMMONSES (Doc. 36.)
Gary S. Austin, UNITED STATES MAGISTRATE JUDGE.
Christopher Simmons (" Plaintiff" ) is a state prisoner proceeding with counsel in this civil rights action pursuant to Title V of the Americans with Disabilities Act of 1990 (ADA), California's Disabled Person Act (CDPA), and the Unruh Civil Rights Act (Unruh Act). This action was initiated by civil complaint filed by Plaintiff, proceeding pro se, in the Kern County Superior Court on December 17, 2009 (Case #S-1500-CV-269232, DRL). On March 29, 2010, defendant California Department of Corrections and Rehabilitation (CDCR) (" Defendant" ) removed the case to federal court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441(a). (Doc. 1.)
On March 8, 2012, Plaintiff filed the First Amended Complaint. (Doc. 13.) The court screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A and issued an order on July 18, 2013, dismissing the First Amended Complaint, with leave to amend. (Doc. 19.)
On June 30, 2014, the court approved Plaintiff's request to substitute attorney Christopher Simmons as his attorney of record. (Doc. 32.) On October 3, 2013, Plaintiff, proceeding with counsel, filed the Second Amended Complaint. (Doc. 22.) On September 10, 2014, the court issued
summonses to initiate service of process upon the defendants named in the Second Amended Complaint. (Docs. 34, 35.)
On September 16, 2014, defendant CDCR filed a request for the court to screen the Second Amended Complaint and to vacate the issued summonses. (Doc. 36.)
II. SCREENING REQUIREMENT -- 28 U.S.C. § 1915A
The Prisoner Litigation Control Act of 1995 (PLRA), 110 Stat.1321-71, as amended, 42 U.S.C. § 1997e et seq., was enacted by Congress in an effort to address the large number of prisoner complaints filed in federal court. Jones v. Bock, 549 U.S. 199, 202, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The general rule under 28 U.S.C. § 1915A is that " [t]he court shall review ... a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and " shall identify cognizable claims or dismiss the complaint, or any portion of the complaint" if it is " frivolous, malicious, or fails to state a claim upon which relief can be granted; or ... seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A.
A. Defendant's Request for Screening
Defendant CDCR (" Defendant" ) requests the court to screen the Second Amended Complaint, pursuant to 28 U.S.C. § 1915A, and allow thirty days after service of any defendant properly identified in the Court's screening order in which to file a responsive pleading. Defendant argues that nothing in the plain language of the statute limits ...