-NLS Bovarie v. Schwarzenegger, et al, No. 3:2008cv01661 - Document 8 (S.D. Cal. 2009)
Court Description: ORDER Denying Motion for Class Certification Without Prejudice; Dismissing Without Prejudice Defendants Arnold Schwarzenegger, Matthew Cates, James E Tilton, Michael A Smelosky, V M Almager, G J Giurbino Pursuant to 28 U.S.C. 1915(e)(2) & 1915A(b) and Directing U.S. Marshal to Effect Service of Plaintiff's First Amended Complaint. Signed by Judge Larry Alan Burns on 1/9/09. (All non-registered users served via U.S. Mail Service).(pdc)
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-NLS Bovarie v. Schwarzenegger, et al Doc. 8 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 MARCUS BOVARIE CDCR #J-39046, Civil No. Plaintiffs, 12 ORDER: (1) DENYING MOTION FOR CLASS CERTIFICATION WITHOUT PREJUDICE; 13 14 vs. (2) DISMISSING DEFENDANTS SCHWARZENEGGER, CATES, TILTON, SMELOSKY, ALMAGER AND GIURBINO PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 15 16 17 08-1661 LAB (NLS) ARNOLD SCHWARZENEGGER, et al., AND 18 (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F ED.R.C IV.P. 4(c)(3) AND 28 U.S.C. § 1915(d) 19 Defendants. 20 21 22 23 I. Procedural History 24 Plaintiffs Marcus Bovarie, a state inmate currently incarcerated at Centinela State Prison in 25 Imperial, California, and Wayne Wicken, proceeding pro se, filed a civil rights Complaint pursuant 26 to 42 U.S.C. § 1983 on September 10, 2008. In this Complaint, Plaintiffs alleged that their Eighth 27 Amendment right to be free from cruel and unusual punishment were violated when they received 28 inadequate medical care. K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1661-Dismiss & Serve FAC 1 08cv1661 Dockets.Justia.com 1 Only one Plaintiff, Marcus Bovarie, submitted a Motion to Proceed In Forma Pauperis (“IFP”) 2 pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. This Court granted Plaintiff Bovarie’s Motion to Proceed 3 IFP on October 24, 2008. See Oct. 24, 2008 Order at 6-7. However, the Court dismissed Plaintiff 4 Wicken from this action because he failed to move to proceed IFP or pay the initial civil filing fee. (Id. 5 ) In addition, Plaintiff Bovarie was informed by the Court that he has no legal authority to represent the 6 legal interest of any other party. Id. at 3; citing Cato v. United States, 70 F.3d 1103, 1105 n. 1 (9th Cir. 7 1995). The Court also sua sponte dismissed Plaintiff’s claims against Schwarzenegger, Cates, Tilton, 8 Smelosky, Almager and Giurbino because he sought to hold them liable in their supervisory capacities. 9 Id. at 5. Plaintiff was granted leave to file a First Amended Complaint to correct the deficiencies of 10 pleading identified by the Court. Id. at 7. On December 8, 2008, Plaintiff filed his First Amended 11 Complaint (“FAC”).1 12 II. Motion for Class Certification 13 In his First Amended Complaint, Plaintiff seeks “certification of a class action lawsuit 14 based on denial of medical care affecting all California Department of Corrections and 15 Rehabilitation’s prisoners.” (FAC at 3.) However, the Court takes judicial notice of the class 16 action found in Plata v. Schwarzenegger, N.D. Cal. Civil Case No. C-01-1351.2 It appears that 17 the class action Plaintiff is seeking is identical to the class action that already exists in the Plata 18 case. 19 prejudice. 20 III. Accordingly, the Court DENIES Plaintiff’s request for class certification without Sua Sponte Screening per 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1) 21 As the Court noted in its October 24, 2008 Order, the Prison Litigation Reform Act 22 obligates the Court to review complaints filed by all persons proceeding IFP and those, like 23 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or 24 1 25 26 27 In his First Amended Complaint, Plaintiff, once again, appears to bring this matter on behalf of inmate Wicken. See FAC at 1. Plaintiff Wicken has been dismissed from this action and has neither filed a Motion to Proceed IFP nor paid the initial filing fee to permit him to proceed. Accordingly, the Court will not address any of the claims Plaintiff attempts to raise as to inmate Wicken as he is not a party to this action. 2 28 A court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1661-Dismiss & Serve FAC 2 08cv1661 1 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 2 probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.” 3 See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte 4 dismiss prisoner and all other IFP complaints, or any portions thereof, which are frivolous, 5 malicious, fail to state a claim, or which seek damages from defendants who are immune. See 6 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 7 (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A). 8 Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte 9 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However 28 10 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing an IFP or prisoner’s suit 11 make and rule on its own motion to dismiss before directing that the Complaint be served by the 12 U.S. Marshal pursuant to F ED.R.C IV.P. 4(c)(3). Id. at 1127; see also McGore v. Wrigglesworth, 13 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte screening pursuant to § 1915 14 should occur “before service of process is made on the opposing parties”). 15 “[W]hen determining whether a complaint states a claim, a court must accept as true all 16 allegations of material fact and must construe those facts in the light most favorable to the 17 plaintiff.” Resnick, 213 F.3d at 447; Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 18 (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 19 In addition, the Court has a duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. 20 Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), which is “particularly important 21 in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal 22 interpretation to a pro se civil rights complaint, however, the court may not “supply essential 23 elements of claims that were not initially pled.” Ivey v. Board of Regents of the University of 24 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 In his First Amended Complaint Plaintiff, once again, names as Defendants Arnold 26 Schwarzenegger, the Governor of California, Matthew Cates, the Secretary of the California 27 Department of Corrections and Rehabilitation (“CDCR”), James Tilton, Former Secretary of the 28 CDCR, Michael Smelosky, Warden for Centinela State Prison, V.M. Almager and G.J. Giurbino, K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1661-Dismiss & Serve FAC 3 08cv1661 1 former Wardens of Centinela State Prison. Plaintiff alleges no direct involvement by any of 2 these named Defendants with respect to the allegations of the inadequate medical care he 3 personally received. Thus, it appears that Plaintiff is seeking to hold these Defendants liable in 4 their supervisory capacity. However, there is no respondeat superior liability under 42 U.S.C. 5 § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into 6 causation must be individualized and focus on the duties and responsibilities of each individual 7 defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer 8 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 9 (1976)). 10 As Plaintiff was informed in the Court’s October 24, 2008 Order, in order to avoid the 11 respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which 12 have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 13 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). As a 14 supervisor, a Defendant may only be held liable for the allegedly unconstitutional violations of 15 his subordinates if Plaintiff alleges specific facts which show: (1) how or to what extent this 16 supervisor personally participated in or directed Defendants’ actions, and (2) in either acting or 17 failing to act, the supervisor was an actual and proximate cause of the deprivation of his 18 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). However, Plaintiff’s 19 First Amended Complaint in no way sets forth facts which might be liberally construed to 20 support an individualized constitutional claim against these Defendants. 21 Thus, the claims against Defendants Schwarzenegger, Cates, Tilton, Smelosky, Almager 22 and Giurbino are dismissed for failing to state a claim upon which section 1983 relief can be 23 granted. 24 As to the remaining Defendants, the Court finds that the Eighth Amendment claims now 25 alleged in Plaintiff’s Amended Complaint survive the sua sponte screening required by 28 26 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is entitled to U.S. Marshal service on 27 his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) (“The officers of the court shall 28 issue and serve all process, and perform all duties in [IFP] cases.”); F ED.R.C IV.P. 4(c)(3) K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1661-Dismiss & Serve FAC 4 08cv1661 1 (providing that “service be effected by a United States marshal, deputy United States marshal, 2 or other officer specially appointed by the court . . . when the plaintiff is authorized to proceed 3 in forma pauperis pursuant to 28 U.S.C. § 1915.”). Plaintiff is cautioned, however, that “the sua 4 sponte screening and dismissal procedure is cumulative of, and not a substitute for, any 5 subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 6 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 7 IV. Conclusion and Order 8 (1) Plaintiff’s Motion for Class Certification is DENIED without prejudice; 9 (2) Plaintiff’s claims against Defendants Schwarzenegger, Cates, Tilton, Smelosky, 10 Almager and Giurbino are DISMISSED without prejudice for failing to state a claim upon 11 which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1). 12 IT IS FURTHER ORDERED that: 13 (3) The Clerk shall issue a summons as to Plaintiff’s First Amended Complaint [Doc. 14 No. 6] upon the remaining Defendants and forward it to Plaintiff along with a blank U.S. 15 Marshal Form 285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff 16 with a certified copy of this Order, a certified copy of the Court’s October 24, 2008 Order 17 granting Plaintiff’s Motion to Proceed IFP [Doc. No. 3], certified copies of his First Amended 18 Complaint [Doc. No. 6] and the summons for purposes of serving each named Defendant. Upon 19 receipt of this “IFP Package,” Plaintiff is directed to complete the Form 285s as completely and 20 accurately as possible, and to return them to the United States Marshal according to the 21 instructions provided by the Clerk in the letter accompanying his IFP package. Thereafter, the 22 U.S. Marshal shall serve a copy of the First Amended Complaint and summons upon each 23 Defendant as directed by Plaintiff on each Form 285. All costs of service shall be advanced by 24 the United States. See 28 U.S.C. § 1915(d); F ED.R.C IV.P. 4(c)(3). 25 (4) Defendants are thereafter ORDERED to reply to the First Amended Complaint 26 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 27 See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to “waive the 28 right to reply to any action brought by a prisoner confined in any jail, prison, or other K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1661-Dismiss & Serve FAC 5 08cv1661 1 correctional facility under section 1983,” once the Court has conducted its sua sponte screening 2 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary 3 determination based on the face on the pleading alone that Plaintiff has a “reasonable 4 opportunity to prevail on the merits,” Defendants are required to respond). 5 (5) Plaintiff shall serve upon Defendants or, if appearance has been entered by 6 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 7 submitted for consideration of the Court. Plaintiff shall include with the original paper to be 8 filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy 9 of any document was served on Defendants, or counsel for Defendants, and the date of service. 10 Any paper received by the Court which has not been filed with the Clerk or which fails to 11 include a Certificate of Service will be disregarded. 12 13 IT IS SO ORDERED. DATED: January 9, 2009 14 15 H ONORABLE L ARRY A LAN B URNS United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\LAB\08cv1661-Dismiss & Serve FAC 6 08cv1661
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