-PCL Rideau v. Ochoa et al, No. 3:2010cv00594 - Document 41 (S.D. Cal. 2010)
Court Description: ORDER granting Plaintiff's 40 Motion to Serve Defendants J. Mudra and Larry Small with Summons and Complaint in a Civil Action; granting in part and denying in part Defendants' 29 Motion to Dismiss the Complaint for Failure to State a C laim for Which Relief may be Granted. Court grants Plaintiff 60 days leave to file and serve upon Defendants an Amended Complaint. Court directs the Attorney General to provide the forwarding address for Defendants Mudra and Small to the US Marshal. Attorney General shall provide US Marshal w/ any such information by 10/1/2010. Clerk shall provide to the Attorney General a copy of: 1.) Court's 3/30/2010 Order, 2.) this Order, 3.) Complaint, summons and blank USM Form 285.. Signed by Judge Irma E. Gonzalez on 9/16/2010. (Copy of 3/30/10 Order, Complaint, Summons and 285 Forms t/w copy of this Order mailed to Atty General) (All non-registered users served via U.S. Mail Service)(jah)
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-PCL Rideau v. Ochoa et al Doc. 41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 GREGORY SYLVESTER RIDEAU, JR, CDCR #K-32522, Civil No. Plaintiff, 13 ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6); and 14 vs. 15 16 17 18 19 10cv0594 IEG (PCL) TIM OCHOA; LARRY SMALL; G.J. JANDA; C. BUTLER; J. MUDRA; KATRINA BALL; DEXTER BELL; J. MAGNER; S. NIZAMANI; STATE OF CALIFORNIA, (2) GRANTING PLAINTIFF’S MOTION TO SERVE DEFENDANTS MUDRA AND SMALL [Doc. Nos. 29, 40] Defendants. 20 21 22 I. 23 PROCEDURAL HISTORY 24 In this prisoner civil rights case, Gregory Rideau, Jr. (“Plaintiff”), is proceeding in pro 25 se and in forma pauperis (“IFP”) pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a). 26 Defendants Ball, Janda, Ochoa, Bell, Butler, Magner, Nizamani and the State of California have 27 filed a Motion to Dismiss Plaintiff’s Complaint pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No 29]. 28 Plaintiff filed his Opposition on July 15, 2010 but Defendants have not filed a reply. In addition, K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -1- 10cv0594 IEG (PCL) Dockets.Justia.com 1 Plaintiff has filed a letter with the Court [Doc. No. 31], a Declaration [Doc. No. 36], and a 2 “Motion to Serve Defendants Mudra and Small” [Doc. No. 40]. 3 The Court has determined that both Plaintiff and Defendants’ Motion are suitable for 4 disposition upon the papers without oral argument and that no Report and Recommendation from 5 Magistrate Judge Peter C. Lewis is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e). 6 II. 7 PLAINTIFF’S CORRESPONDENCE AND DECLARATION 8 On July 9, 2010 and July 28, 2010, Plaintiff filed a letter with the Court, along with a 9 Declaration, in which he claims he is being retaliated against for filing this lawsuit. These 10 claims cannot be brought or considered by this Court because they involve claims that arose 11 after Plaintiff initiated this action. Any new claims are subject to the Prison Litigation Reform 12 Act’s (“PLRA”) exhaustion requirement. The PLRA amended 42 U.S.C. § 1997e(a) to provide 13 that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a 14 prisoner confined in any jail, prison or other correctional facility until such administrative 15 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Once within the discretion of 16 the district court, exhaustion in cases covered by § 1997e(a) is now mandatory.” Porter v. 17 Nussle, 534 U.S. 516, 532 (2002). 42 U.S.C. § 1997e(a) has been construed broadly to “afford 18 [ ] corrections officials time and opportunity to address complaints internally before allowing 19 the initiation of a federal case, id. at 525-26, and to encompass inmate suits about both general 20 circumstances and particular episodes of prison life--including incidents of alleged excessive 21 force. Id. at 532. Finally, “[t]he ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint 22 under § 1983 may be entertained,” “regardless of the relief offered through administrative 23 procedures.” Booth v. Churner, 532 U.S. 731, 738, 741 (2001); see also McKinney v. Carey, 24 311 F.3d 1198, 1200-01 (9th Cir. 2002) (finding that prisoner’s civil rights action must be 25 dismissed without prejudice unless prisoner exhausted available administrative remedies before 26 he filed suit, even if he fully exhausts while the suit is pending). 27 /// 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -2- 10cv0594 IEG (PCL) 1 Thus, the Court cannot consider or make any rulings with respect to the merits of the new 2 claims Plaintiff seeks to bring to this Court’s attention through his correspondence and 3 Declaration. Any new claims must be brought in a separate action once Plaintiff has properly 4 exhausted his available administrative remedies. 5 II. 6 FACTUAL BACKGROUND 7 Plaintiff, an inmate currently housed at Calipatria State Prison (“CAL”), alleges that he 8 suffers from a physical disability known as “obstructive sleep apnea.” See Compl. at 5. As a 9 result of this disability, Plaintiff claims that he is a “qualified individual” under the Americans 10 with Disabilities Act (“ADA”). On September 3, 2009, Plaintiff submitted a “Reasonable 11 Modification or Accommodation Request” form which is also known as a “CDC 1824" form. 12 Id. at 9. Plaintiff requested that his disability be accommodated by housing Plaintiff in a single 13 cell, as well as having access to electrical outlets in order for him to use his “continuous positive 14 airway pressure (“CPAP”) machine.” Id. This grievance was later converted into a “regular 15 CDCR 602 grievance” by Defendant Bell that was endorsed by Defendant Ochoa. Id. at 6-7. On 16 October 28, 2009, Defendant Mudra interviewed Plaintiff with regard to his now “regular” 17 grievance. Id. at 10. Defendant Mudra denied Plaintiff’s request for a single cell. Id. 18 In addition to filing grievances, Plaintiff alleges that he “apprised” Defendant Larry 19 Small1 of the issues regarding his need for a single cell and informed him that prison doctors 20 have “purposely withheld” his CPAP machine. Id. at 9. Plaintiff was examined by Defendant 21 Ball, a prison doctor, whom he alleges informed “Correctional Staff Captain Stratton that 22 Plaintiff should not be accommodated with a single cell for use of his CPAP machine.” Id. at 23 12. Plaintiff claims that his sleep apnea “exacerbates Plaintiff’s hypertension.” Id. As a result, 24 Plaintiff continues to experience “chest pain, anxiety attacks, and headaches.” Id. On 25 September 5, 2009, Plaintiff was moved to a double cell by Defendant Ochoa which prevented 26 Plaintiff from being able to use his CPAP machine. Id. Plaintiff alleges that Defendants Janda 27 28 1 A review of the Court’s docket indicates that Defendant Small has not been properly served in this matter and therefore has not yet appeared in this action. K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -3- 10cv0594 IEG (PCL) 1 and Butler also violated his constitutional rights when they continued to house him in a double 2 cell knowing that Plaintiff’s physical disability has caused him to have tension with other 3 cellmates. Id. 4 On February 24, 2010, Plaintiff was “finally provided a ‘medical classification chrono’ 5 for permanent electrical access” which allows him use of his CPAP machine, although he 6 remains housed in a double cell. Id. at 10. 7 III. 8 DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b)(6) 9 Defendants Ball, Janda, Ochoa, Bell, Butler, Magna, Nizamani and the State of California 10 move to dismiss Plaintiff’s Complaint pursuant to FED.R.CIV.P. 12(b)(6) contending that: (1) the 11 State of California is immune from money damages under the Eleventh Amendment; (2) Plaintiff 12 has failed to state a claim against Defendants Bell and Mudra; (3) Plaintiff has failed to state an 13 Eighth Amendment claim; and (4) Plaintiff has failed to state a claim under the Americans with 14 Disabilities Act (“ADA”). FED.R.CIV.P. 12(b)(6) Standard of Review 15 A. 16 A Rule 12(b)(6) dismissal may be based on either a “‘lack of a cognizable legal theory’ 17 or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v. 18 Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri 19 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff’s 20 complaint must provide a “short and plain statement of the claim showing that [he] is entitled 21 to relief.” Id. (citing FED.R.CIV.P. 8(a)(2)). 22 A motion to dismiss should be granted if plaintiff fails to proffer “enough facts to state 23 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 24 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 25 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 26 Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (2009) . 27 /// 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -4- 10cv0594 IEG (PCL) 1 In addition, factual allegations asserted by pro se petitioners, “however inartfully 2 pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines 3 v. Kerner, 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona in a civil 4 rights case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the 5 doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). 6 B. Eleventh Amendment 7 Defendant State of California moves to dismiss all claims for money damages brought 8 by Plaintiff. To the extent Plaintiff seeks to sue the State of California for money damages 9 pursuant to 42 U.S.C. § 1983, his claims are barred by the Eleventh Amendment. See Pennhurst 10 State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course, that in the 11 absence of consent a suit in which the State or one of its agencies or departments is named as 12 the defendant is proscribed by the Eleventh Amendment.”); Alabama v. Pugh, 438 U.S. 781, 782 13 (1978) (finding suit against state Board of Corrections barred by the Eleventh Amendment). 14 “This jurisdictional bar applies regardless of the nature of the relief sought.” Pennhurst, 465 15 U.S. at 100-01 (citing Missouri v. Fiske, 290 U.S. 18, 27 (1933) (“Expressly applying to suits 16 in equity as well as at law, the [Eleventh] Amendment necessarily embraces demands for the 17 enforcement of equitable rights and the prosecution of equitable remedies when these are 18 asserted and prosecuted by an individual against a State”)). 19 Accordingly, the Court GRANTS Defendant State of California’s Motion to Dismiss 20 Plaintiff’s monetary damages as barred by the Eleventh Amendment pursuant to FED.R.CIV.P. 21 12(b)(6). 22 C. 23 Defendants move for dismissal of Plaintiff’s Fourteenth Amendment due process claims 24 against Defendants Bell and Mudra. Defendant Mudra has not been properly served in this 25 matter and does not appear to be represented by counsel for the remaining Defendants. 26 However, because Plaintiff is proceeding in forma pauperis, the Court has the authority to 27 determine whether he has stated a claim against Defendant Mudra pursuant to 28 U.S.C. 28 § 1915(e)(2). Plaintiff’s claims that Defendants Bell and Mudra violated his right to due process Fourteenth Amendment claims against Defendants Bell and Mudra K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -5- 10cv0594 IEG (PCL) 1 under the Fourteenth Amendment when they converted the grievance he brought under the ADA 2 into a “regular” CDCR 602 grievance. 3 The procedural guarantees of the Fourteenth Amendment’s Due Process Clause apply 4 only when a constitutionally protected liberty or property interest is at stake. Ingraham v. 5 Wright, 430 U.S. 651, 672 (1977); Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997). The 6 Ninth Circuit has held that prisoners have no protected property interest in an inmate grievance 7 procedure. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the due process 8 claim of the Fourteenth Amendment creates “no legitimate claim of entitlement to a [prison] 9 grievance procedure”). A prisoner may only challenge a state action which does not restrain a 10 [constitutionally] protected liberty interest if that state action “nonetheless imposes some 11 ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison 12 life.’” Sandin v. Conner, 515 U.S. 472, 483-84 (1995); see also Neal, 131 F.3d at 827-28. 13 Here, Plaintiff pleads no facts to suggest how Bell and Mudra’s allegedly inadequate 14 review and consideration of his ADA and inmate grievances amounted to a restraint on his 15 freedom not contemplated by his original sentence or resulted in an “atypical” and “significant 16 hardship.” Sandin, 515 U.S. at 483-484. Accordingly, the Court GRANTS Defendants’ Motion 17 to Dismiss Plaintiff’s claims against Defendants Bell pursuant to FED.R.CIV.P. 12(b)(6) and 18 DISMISSES Plaintiff’s claims against Defendant Mudra pursuant to 28 U.S.C. § 1915(e)(2). 19 D. Eighth Amendment claims 20 Defendants also seek dismissal of Plaintiff’s Eighth Amendment claims on the grounds 21 that Plaintiff allegations that Defendants refuse to give him a single cell is a mere disagreement 22 with their medical opinion. See Defs.’ Mot. at 6. 23 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 24 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 25 452 U.S. 337, 347 (1981). A prisoner’s claim of inadequate medical care does not rise to the 26 level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner of 27 the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with 28 deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -6- 10cv0594 IEG (PCL) 1 (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). Before it can 2 be said that a prisoner’s civil rights have been abridged, “the indifference to his medical needs 3 must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support 4 this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) 5 (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). “[A] complaint that a physician has been 6 negligent in diagnosing or treating a medical condition does not state a valid claim of medical 7 mistreatment under the Eighth Amendment. 8 constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see 9 also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Medical malpractice does not become a 10 A prison official does not act in a deliberately indifferent manner unless the official 11 “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 12 U.S. 825, 834 (1994). Deliberate indifference may be manifested “when prison officials deny, 13 delay or intentionally interfere with medical treatment,” or in the manner “in which prison 14 physicians provide medical care.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 15 overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) 16 (en banc). Where a prisoner alleges delay in receiving medical treatment, he must show that the 17 delay led to further harm. Id. at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 18 766 F.2d 404, 407 (9th Cir. 1985)). 19 Here, Defendants argue that “the simple fact of the matter is that Plaintiff disagrees with 20 his doctors and with Defendants over whether his medical condition requires him to be single 21 celled.” Defs.’ Mot. at 7. This argument only partially relates to Plaintiff’s Eighth Amendment 22 claim. Plaintiff’s Eighth Amendment claim involves more than the single cell issue and is not 23 fully addressed in Defendants’ moving papers. Plaintiff alleges that several of the Defendants, 24 including Defendant Ball, intentionally denied him access to his breathing machine that has led 25 to exacerbation of his high blood pressure, along with “chest pain, anxiety attacks and 26 headaches.” Compl. at 7, 12. Defendants fail to argue that Plaintiff did not have a serious 27 medical need and they failed to address the alleged denial of medical equipment used to treat 28 Plaintiff’s medical condition. Thus, at this stage, Defendants’ Motion to Dismiss Plaintiff’s K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -7- 10cv0594 IEG (PCL) 1 Eighth Amendment claims is DENIED pursuant to FED.R.CIV.P. 12(b)(6). 2 E. 3 The Americans with Disabilities Act, 42 U.S.C. § 12132, applies in the prison context. 4 See 42 U.S.C. § 12131(1)(B); Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998) 5 (holding that state prisons fall squarely within the ADA’s Title II’s statutory definition of 6 “public entity,” which includes “any ... instrumentality of a State ... or local government.”) 7 In order to state a claim under Title II of the ADA, however, a plaintiff must allege: 8 9 10 11 Americans with Disabilities Act (1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, or activities;’ (3) he ‘was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity;’ and (4) ‘such exclusion, denial of benefits, or discrimination was by reason of [his] disability.’ 12 13 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citing McGary 14 v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (quoting Thompson v. Davis, 295 F.3d 15 890, 895 (9th Cir. 2002) (per curiam)). Punitive damages are not available in private suits 16 brought under § 202 of the ADA (prohibiting discrimination against the disabled by public 17 entities). Barnes v. Gorman, 536 U.S. 181, 189 (2002); Mark H. v. Lemahieu, 513 F.3d 922, 930 18 (9th Cir. 2008). 19 Defendants argue that “many courts have held that sleep apnea is not a disability under 20 the ADA.” Defs.’ Mot. at 7 (citing Blue v. Scavetta, 372 Fed.Appx. 754 (9th Cir. 2010)). This 21 was not the holding of the unpublished decision cited by Defendants. This case merely affirmed 22 a finding of the lower court that the plaintiff had not raised a triable issue of fact on summary 23 judgment. There was no holding that sleep apnea is not a disability. 24 One definition of a “disability” under the ADA is “a physical or mental impairment that 25 substantially limits one or more major life activities of such individual.” 42 U.S.C. § 26 12102(2)(A). Sleep has been held to be a “major life activity.” See McAlindin v. County of San 27 Diego, 192 F.3d 1226, 1233-34 (9th Cir. 1999). Thus, because the Court must rely solely on the 28 claims set forth by Plaintiff, the Court finds that Plaintiff has adequately alleged that he has a K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -8- 10cv0594 IEG (PCL) 1 physical disability that impairs a major life activity. Whether Plaintiff would be able to prove 2 this claim or Defendants would be able to prove otherwise is better suited by providing a fully 3 developed record. 4 However, in order to adequate allege an ADA claim, Plaintiff must also be able to allege 5 facts sufficient to show that he was discriminated against because of his physical disability. 6 Plaintiff has alleged no facts that support his claim that he was denied a single cell or medical 7 treatment because of his physical disability. See Simmons v. Navajo County, Ariz. 609 F.3d 8 1011, 1022 (9th Cir. 2010). 9 10 Thus, Defendants’ Motion to Dismiss Plaintiff’s ADA claims is GRANTED pursuant to FED.R.CIV.P. 12(b)(6). 11 IV. 12 PLAINTIFF’S MOTION TO SERVE DEFENDANTS SMALL AND MUDRA 13 In addition, Plaintiff has filed a “Motion to Serve Defendants Mudra and Small” [Doc. 14 No. 40]. A review of the Court’s docket indicates that these Defendants have yet to be served 15 in this action. While the claims against Defendant Mudra are currently dismissed, Plaintiff will 16 be given the opportunity to correct the deficiencies of pleading by filing an Amended Complaint. 17 In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order of the 18 court, shall serve the summons and the complaint. FED.R.CIV.P. 4(c)(3); 28 U.S.C. § 1915(d). 19 “‘[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 20 Marshal for service of the summons and complaint and ... should not be penalized by having his 21 action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed 22 to perform his duties.’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett, 23 912 F.2d at 275), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). “So 24 long as the prisoner has furnished the information necessary to identify the defendant, the 25 marshal’s failure to effect service is ‘automatically good cause....’” Walker, 14 F.3d at 1422 26 (quoting Sellers v. United States, 902 F.2d 598, 603 (7th Cir. 1990)). Here, because Plaintiff 27 has not yet been able to ascertain the proper location where Defendants Small and Mudra may 28 now be served, he must remedy the situation or face dismissal of his claims against them. See K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -9- 10cv0594 IEG (PCL) 1 Walker, 14 F.3d at 1421-22 (holding prisoner failed to show cause why prison official should 2 not be dismissed under Rule 4(m) where prisoner failed to show he had provided Marshal with 3 sufficient information to effectuate service). 4 Accordingly, as long as Defendants Small and Mudra are currently employed by the 5 CDCR and/or their forwarding addresses can be easily ascertained by reference to the CDCR’s 6 personnel records, Plaintiff is entitled to rely on the U.S. Marshal to effect service upon both 7 these Defendants on his behalf. See Puett, 912 F.2d at 275. The Court hereby directs the 8 Deputy Attorney General assigned to this case to contact either the Litigation Coordinator at 9 Calipatria State Prison or the CDCR’s Legal Affairs Division, if necessary, and provide current 10 addresses within the CDCR’s records or possession, and to forward those addresses to the USMS 11 in a confidential memorandum. 12 V. Conclusion and Order 13 Based on the foregoing, the Court hereby: 14 1) 15 16 17 18 19 20 21 22 23 24 GRANTS Defendants’ Motion to Dismiss [Doc. No. 29] all claims for monetary damages against the State of California pursuant to FED.R.CIV.P. 12(b)(6); 2) GRANTS Defendants’ Motion to Dismiss [Doc. No. 29] Plaintiff’s Fourteenth Amendment due process claims against Defendant Bell pursuant to FED.R.CIV.P. 12(b)(6); 3) DISMISSES Plaintiff’s Fourteenth Amendment due process claims against Defendant Mudra for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2); 4) DENIES Defendants’ Motion to Dismiss [Doc. No. 29] Plaintiff’s Eighth Amendment claims pursuant to FED.R.CIV.P. 12(b)(6); 5) GRANTS Defendants’ Motion to Dismiss [Doc. No. 29] Plaintiff’s ADA claims pursuant to FED.R.CIV.P. 12(b)(6); 6) GRANTS Plaintiff sixty (60) days leave to file and serve upon Defendants an 25 Amended Complaint which addresses each deficiency of pleading identified in this Order. 26 Plaintiff’s Amended Complaint must be complete in itself without reference to his original 27 Complaint. See S. D. CAL. CIVLR 15.1. Any Defendant not named and any claim not re-alleged 28 in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 567 K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -10- 10cv0594 IEG (PCL) 1 (9th Cir. 1987). 2 7) GRANTS Plaintiff’s Motion to Serve Defendants Mudra and Small and 3 DIRECTS the Deputy Attorney General assigned to this case to provide the forwarding address 4 for Defendants Mudra and Small to the U.S. Marshal in a confidential memorandum indicating 5 that the summons and complaint is to be delivered to that address. The Attorney General shall 6 provide the U.S. Marshal with any such information on or before October 1, 2010. 7 Within thirty (30) days of receipt of any available address from the Attorney General, 8 the Court ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Complaint and summons 9 upon Defendants Mudra and Small. All costs of service shall be advanced by the United States 10 pursuant to the Court’s Order granting Plaintiff leave to proceed IFP and directing service 11 pursuant to 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(3). 12 IT IS FURTHER ORDERED that the Clerk of the Court provide a copy of: (1) the 13 Court’s March 30, 2010 Order [Doc. No. 3]; (2) this Order; (3) the Complaint, summons and a 14 blank U.S. Marshal Form 285 to the Attorney General for purposes of re-attempting service as 15 to Mudra and Small. 16 17 DATED: September 16, 2010 18 IRMA E. GONZALEZ, Chief Judge United States District Court 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\IEG\10cv0594-grt & dny MTD.wpd -11- 10cv0594 IEG (PCL)
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