United States District Court, S.D. California
ORDER: 1) DISMISSING DEFENDANT SAN DIEGO CENTRAL
JAIL; AND 2) DIRECTING USMS TO EFFECT SERVICE OF FIRST
CATHY ANN BENCIVENGO, UNITED STATES DISTRICT JUDGE
April 2, 2019, Plaintiff, Dennis Smith, currently a state
inmate housed at the Substance Abuse Treatment Facility
(“SATF”) located in Corcoran, California, filed a
civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF
No. 1). In addition, he filed a Motion to Proceed In Forma
Pauperis (“IFP”) pursuant to 28 U.S.C. §
1915(a) (ECF No. 4). Plaintiff alleged his constitutional
rights were violated when he was a pretrial detainee housed
at the San Diego Central Jail (“SDCJ”) in 2018.
The Court GRANTED Plaintiff's Motion to Proceed IFP and
DISMISSED some claims and Defendants for failing to state a
claim upon which relief could be granted pursuant to 28
U.S.C. § 1915(e)(2) & 1915A(b). (ECF No. 5.) On June
28, 2019, Plaintiff filed his First Amended Complaint
(“FAC”). (ECF No. 6.)
Sua Sponte Screening Pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)
Plaintiff is a prisoner and is proceeding IFP, his FAC
requires a pre-Answer screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). Under these statutes, the
Court must sua sponte dismiss a prisoner's IFP complaint,
or any portion of it, which is frivolous, malicious, fails to
state a claim, or seeks damages from defendants who are
immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27
(9th Cir. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The purpose of [screening] is ‘to ensure that
the targets of frivolous or malicious suits need not bear the
expense of responding.'” Nordstrom v.
Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting
Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 681 (7th Cir. 2012)).
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint to “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
factual allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Determining whether a
complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
42 U.S.C. § 1983
42 U.S.C. § 1983 provides a cause of action for the
“deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United
States. Wyatt v. Cole, 504 U.S. 158, 161 (1992). To
state a claim under § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person
acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988); Long v. Cty. of Los Angeles, 442
F.3d 1178, 1185 (9th Cir. 2006).
initially named Defendant San Diego Central Jail in his
original Complaint. (ECF No. 1.) However, on May 14, 2019,
the Court dismissed the claims against Defendant San Diego
Central Jail for failing to state a claim pursuant to 28
U.S.C. § 1915(e)(2) & § 1915A. (ECF No. 5 at
10.) Plaintiff was cautioned that any “[d]efendants not
named and any claim not re-alleged in his Amended Complaint
will be considered waived.” (Id. citing S.D.
Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard
Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.
1989) (“[A]n amended pleading supersedes the
original.”); Lacey v. Maricopa Cnty., 693 F.3d
896, 928 (9th Cir. 2012) (noting that claims dismissed with
leave to amend which are not re-alleged in an amended
pleading may be “considered waived if not
FAC, Plaintiff no longer San Diego Central Jail as a
Defendant. Thus, the Court finds that Plaintiff has waived
all claims against this Defendant and DISMISSES Defendant San
Diego Central Jail from this action.
the Court finds Plaintiff's FAC contains allegations
against the remaining Defendants sufficient to survive the
“low threshold” for proceeding past the sua
sponte screening required by 28 U.S.C. §§
1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at
1123. Accordingly, the Court will direct U.S. Marshal service
upon the remaining Defendants on Plaintiff's 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 ...