# Johnston v. Allison

> District Court, S.D. California · September 9, 2019

URL: https://www.frixlaw.com/law-library/cases/10079512

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 9, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10079512

## How later opinions describe it (automated extraction)

- noting that claims dismissed with leave to amend which are not re-alleged in an 5 amended pleading may be “considered waived if not repled.”
- noting that 10 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 JEREMIAH M. JOHNSTON, Case No.: 3:19-cv-0616-AJB-BLM
CDCR #AZ-0346,
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ORDER:
Plaintiff,
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v. 1) DENYING MOTION FOR
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PRELIMINARY INJUNCTION;
RALPH DIAZ; SCOTT KERNAN;
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DANIEL PARAMO; PAT CAVELLO;
2) DISMISSING DEFENDANTS FOR
16 LT. RODRIGUEZ; D. HOUGH; S.
FAILING TO STATE A CLAIM;
CHAT; D. JAIME; M. VOONG;
17 and
JANE/JOHN DOES 1 THROUGH 6; RJD

18 EMPLOYEES,
3) DIRECTING U.S. MARSHAL TO
19 Defendants. EFFECT SERVICE OF FIRST
AMENDED COMPLAINT
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21 [Doc. Nos. 10, 12]
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23 I. Procedural History
24 On March 29, 2019, Jeremiah M. Johnston (“Plaintiff”), a state inmate currently
25 incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) located in San
26 Diego, California and proceeding pro se, filed a civil rights complaint pursuant to 42
27 U.S.C. § 1983. See Compl., Doc. No. 1.
28 / / /
1 Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a
2 civil action when he filed his Complaint; instead, he filed a Motion to Proceed In Forma
3 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), along with a Motion for Preliminary
4 Injunction. See Doc. Nos. 2, 5.
5 On April 30, 2019, the Court granted Plaintiff’s Motion to Proceed IFP, denied his
6 Motion for Preliminary Injunction, and dismissed the entire action for failing to state a
7 claim pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A. See Doc. No. 6. Plaintiff was
8 granted leave to file an amended pleading to correct the deficiencies the Court identified
9 in its Order. Id.
10 On August 15, 2019, Plaintiff filed his First Amended Complaint (“FAC”), along
11 with a Motion for Preliminary Injunction. See Doc. Nos. 10, 12.
12 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)
13 A. Standard of Review
14 As the Court previously informed Plaintiff, a complaint filed by any person
15 proceeding in forma pauperis is subject to sua sponte dismissal, however, if it is
16 “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s]
17 monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);
18 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the
19 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith,
20 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but
21 requires a district court to dismiss an in forma pauperis complaint that fails to state a
22 claim.”).
23 All complaints must contain “a short and plain statement of the claim showing that
24 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
25 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
26 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
27 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether
28 a complaint states a plausible claim for relief [is] ... a context-specific task that requires
1 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere
2 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also
3 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
4 “When there are well-pleaded factual allegations, a court should assume their
5 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
6 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
7 (“[W]hen determining whether a complaint states a claim, a court must accept as true all
8 allegations of material fact and must construe those facts in the light most favorable to
9 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
10 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
11 However, while the court “ha[s] an obligation where the petitioner is pro se,
12 particularly in civil rights cases, to construe the pleadings liberally and to afford the
13 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
14 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
15 “supply essential elements of claims that were not initially pled.” Ivey v. Board of
16 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
17 B. Discussion
18 1. 42 U.S.C. § 1983
19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
20 elements: (1) that a right secured by the Constitution or laws of the United States was
21 violated, and (2) that the alleged violation was committed by a person acting under the
22 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,
23 1035-36 (9th Cir. 2015).
24 2. Defendant Voong
25 Plaintiff initially named Defendant Voong in his original Complaint. (Doc. No. 1
26 at 1, 4.) Plaintiff’s entire original Complaint was dismissed on April 30, 2019 and he was
27 given leave to file an amended pleading. (Doc. No. 6 at 12.) Plaintiff was cautioned that
28 any “[d]efendants not named and any claim not re-alleged in his Amended Complaint
1 will be considered waived.” (Id. citing .D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v.
2 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
3 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
4 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
5 amended pleading may be “considered waived if not repled.”).
6 In his FAC, Plaintiff no longer names Voong as a Defendant. Thus, the Court
7 finds that Plaintiff has waived all claims against this Defendant and DISMISSES
8 Defendant Voong from this action.
9 3. Defendant Lobenstein
10 The Court also finds that Plaintiff has failed to allege any claim against Defendant
11 Lobenstein. Plaintiff’s only allegations against Defendant Lobenstein, his treating
12 psychologist, related to his allegation that he discussed with Lobenstein the prison
13 officials’ recommendation Plaintiff move to a general population yard. See FAC at 11.
14 Plaintiff claims Defendant Lobenstein “advised him not to move because he would not be
15 safe with all the violent gang members and life termers on that yard.” Id.
16 In order to state an Eighth Amendment claim against Defendant Lobenstein,
17 Plaintiff must allege that Defendant Lobenstein “kn[e]w of and disregard[ed] an
18 excessive risk to [his] health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994);
19 Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on
20 individual defendant under § 1983 only if plaintiff can show that defendant proximately
21 caused deprivation of federally protected right).
22 Here, Plaintiff alleges the opposite set of facts. He alleges that Defendant
23 Lobenstein advised him to reject a transfer to another yard because Defendant Lobenstein
24 believed Plaintiff would suffer harm if he were transferred. Plaintiff has set forth no
25 factual allegations that Defendant Lobenstein disregarding an excessive risk to Plaintiff’s
26 health or safety. Therefore, Plaintiff’s claims against Defendant Lobenstein are
27 DISMISSED for failing to state a claim upon which relief may be granted.
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1 4. First Amendment and Eighth Amendment claims
2 However, the Court finds Plaintiff’s FAC contains First and Eighth Amendment
3 allegations against the remaining Defendants sufficient to survive the “low threshold” for
4 proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and
5 1915A(b). See Wilhelm, 680 F.3d at 1123; Rhodes v. Robinson, 408 F.3d 559, 567-68
6 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation
7 entails five basic elements: (1) An assertion that a state actor took some adverse action
8 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such
9 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action
10 did not reasonably advance a legitimate correctional goal.”); Farmer, 511 U.S. at 837
11 (failure to protect claims under the Eighth Amendment require a showing that “the
12 official [knew] of and disregard[ed] an excessive risk to inmate health or safety.”).
13 Accordingly, the Court will direct U.S. Marshal service upon the remaining
14 Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall
15 issue and serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P.
16 4(c)(3) (“[T]he court may order that service be made by a United States marshal or
17 deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28
18 U.S.C. § 1915.”).
19 III. Motion for Preliminary Injunction
20 Procedurally, a federal district court may issue emergency injunctive relief only if
21 it has personal jurisdiction over the parties and subject matter jurisdiction over the
22 lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)
23 (noting that one “becomes a party officially, and is required to take action in that
24 capacity, only upon service of summons or other authority-asserting measure stating the
25 time within which the party served must appear to defend.”). The court may not attempt
26 to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v.
27 Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir.
28 1983). Pursuant to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only
1 “the parties to the action,” their “officers, agents, servants, employees, and attorneys,”
2 and “other persons who are in active concert or participation.” FED. R. CIV. P.
3 65(d)(2)(A)-(C).
4 At this time, United States Marshal has not yet effected service of the FAC on his
5 behalf, and the named Defendants have no actual notice of either of Plaintiff’s FAC or his
6 motion for injunctive relief. Therefore, the Court cannot grant Plaintiff injunctive relief
7 because it has no personal jurisdiction over any Defendant at this time. See FED. R. CIV.
8 P. 65(a)(1), (d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727-28.
9 Therefore, Plaintiff’s Motion for Preliminary Injunction is DENIED without
10 prejudice at this time.
11 IV. Conclusion and Order
12 Accordingly, the Court:
13 1. DENIES Plaintiff’s Motion for Preliminary Injunction without prejudice
14 (Doc. No. 12);
15 2. DISMISSES all claims against Defendants Voong as waived and claims
16 against Defendant Lobenstein pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b) for
17 failing to state a claim upon which § 1983 relief can be granted;
18 3. DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (Doc. No. 10)
19 as to the remaining Defendants and forward it to Plaintiff along with a blank U.S.
20 Marshal Form 285 for Defendants. In addition, the Clerk will provide Plaintiff with a
21 certified copy of the Court’s April 30, 2019 Order granting IFP status, a certified copy of
22 his FAC and the summons so that he may serve these Defendants. Upon receipt of this
23 “IFP Package,” Plaintiff must complete the Form 285s as completely and accurately as
24 possible, include an address where each named Defendant may be found and/or subject
25 to service, and return them to the United States Marshal according to the instructions the
26 Clerk provides in the letter accompanying his IFP package.
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2 4. ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon
3 remaining named Defendants as directed by Plaintiff on the USM Form 285s
4 || provided to him. All costs of that service will be advanced by the United States. See 28
5 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).
6 5. ORDERS Defendants, once they have been served, to reply to Plaintiff's
7 || FAC within the time provided by the applicable provisions of Federal Rule of Civil
8 || Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be
9 || permitted to “waive the right to reply to any action brought by a prisoner confined in any
10 |/jail, prison, or other correctional facility under section 1983,” once the Court has
11 |}conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),
12 || and thus, has made a preliminary determination based on the face on the pleading alone
13 || that Plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is
14 || required to respond); and
15 6. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to
16 serve upon Defendants, or, if appearance has been entered by counsel, upon Defendants’
17 counsel, a copy of every further pleading, motion, or other document submitted for the
18 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every
19 || original document he seeks to file with the Clerk of the Court, a certificate stating the
20 manner in which a true and correct copy of that document has been was served on
21 || Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any
22 document received by the Court which has not been properly filed with the Clerk or
23 || which fails to include a Certificate of Service upon Defendants may be disregarded.
24 IT IS SO ORDERED.
25 Dated: September 9, 2019

27 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079512. Public record. Not legal advice.