1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALFRED DAVID SERNA, Case No.: 22-CV-841 JLS (DEB) CDCR #E-25219, 12 ORDER: (1) DISMISSING Plaintiff, 13 CLAIMS AND DEFENDANT; AND v. (2) DIRECTING U.S. MARSHAL TO 14 EFFECT SERVICE OF AMENDED 15 COMPLAINT AND SUMMONS MADDEN, Warden; UPON DEFENDANTS LOPEZ, 16 C. LOPEZ, Correctional Officer; FRANZ, AND ESCOBAR 17 FRANZ, Correctional Officer; and PURSUANT TO 28 U.S.C. § 1915(d) ESCOBAR, Correctional Officer, AND FEDERAL RULE OF CIVIL 18 Defendants. PROCEDURE 4(c)(3) 19 20 21 22 On June 6, 2022, Alfred David Serna (“Plaintiff” or “Serna”), currently incarcerated 23 at R.J. Donovan Correctional Facility (“RJD”) and proceeding pro se, filed a civil rights 24 complaint pursuant to 42 U.S.C. § 1983 naming Raymond Madden, Warden of RJD, and 25 Correctional Officers Lopez, Franz, and Escobar as Defendants. See generally ECF No. 1 26 (“Compl.”). Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); 27 instead, he filed a Motion to Proceed in Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 28 § 1915(a). See ECF No. 2 (“IFP Mot.”). 1 On August 12, 2022, the Court granted Serna’s IFP Motion and dismissed his claims 2 against Defendant Madden for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) 3 and 1915A(b). See ECF No. 6 (the “Order”). The Order gave Serna the option of (i) 4 proceeding with his Eighth Amendment claims against Defendants Lopez, Franz, and 5 Escobar only; or (ii) filing an Amended Complaint that cured all the deficiencies noted in 6 the Order. See id. Serna was given forty-five days from the date of the Order to respond. 7 See id. 8 On August 24, 2022, Serna filed a document entitled “Request for Judicial Notice” 9 in which he informed the Court of his intention to proceed with his Eighth Amendment 10 claims against Lopez, Franz, and Escobar only. See ECF No. 7. Accordingly, good cause 11 appearing, the Court: 12 1. DISMISSES all claims against Defendant Madden for the reasons set forth in 13 the Court’s August 12, 2022 Order (ECF No. 6) and because Plaintiff has waived those 14 claims. See S.D. Cal. CivLR 15.1; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 15 2012) (noting that claims dismissed with leave to amend may be “considered waived if not 16 repled” in an amended pleading). Accordingly, the Court DIRECTS the Clerk of the Court 17 to terminate Madden as a Defendant in the above-named action; 18 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 19 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of 20 Defendants C. Lopez, Franz, and Escobar (collectively, the “Remaining Defendants”). In 21 addition, the Clerk shall provide Plaintiff with a certified copy of this Order, a certified 22 copy of his Complaint, and the summons so that he may serve the Remaining Defendants. 23 Upon receipt of this “IFP Package,” Plaintiff must (i) complete the USM Form 285s as 24 completely and accurately as possible, (ii) include an address where each of the Remaining 25 Defendants may be found and/or subject to service pursuant to Civil Local Rule 4.1(c), and 26 (iii) return them to the United States Marshal Service according to the instructions the Clerk 27 provides in the letter accompanying the IFP Package; 28 / / / 1 3. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 2 ||upon the Remaining Defendants as directed by Plaintiff on the USM Form 285s provided 3 him. All costs of that service will be advanced by the United States. See 28 U.S.C. 4 1915(d); Fed. R. Civ. P. 4(c)(3); 5 4. ORDERS the Remaining Defendants, once served, to reply to □□□□□□□□□□□ 6 ||Complaint and any subsequent pleading Plaintiff files in this matter in which they are 7 ||named as parties within the time provided by the applicable provisions of Federal Rules of 8 || Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (providing that, while 9 || defendants may occasionally be permitted to “waive the right to reply to any action brought 10 a prisoner confined in any jail, prison, or other correctional facility under section 1983,” 11 a court has sua sponte screened the complaint pursuant to 28 U.S.C. §§ 1915(e)(2) 12 |}and 1915A(b) and thus made a determination based on the face of the pleading alone that 13 || Plaintiff has a “reasonable opportunity to prevail on the merits,” Defendants are required 14 || to respond); and 15 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 16 |/serve upon the Remaining Defendants—or, if appearance has been entered by counsel, 17 ||upon the Remaining Defendants’ counsel—a copy of every further pleading, motion, or 18 || other document submitted for the Court’s consideration pursuant to Federal Rule of Civil 19 || Procedure 5(b). Plaintiff must include, with every original document he seeks to file with 20 || the Clerk, a certificate stating the manner in which a true and correct copy of that document 21 || was served on each of the Remaining Defendants or his counsel and the date of that service. 22 || See S.D. Cal. CivLR 5.2. Any document received by the Court which has not been properly 23 || filed with the Clerk or fails to include a certificate of service upon the Remaining 24 || Defendants, or their counsel, may be disregarded. 25 IT IS SO ORDERED. 26 Dated: September 9, 2022 nie tt f tie 27 on. Janis L. Sammartino 28 United States District Judge 3