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Delgado v. U.S. Attorney General

United States District Court, S.D. California
Sep 26, 2005
Civil No. 04-0518 WQH (JMA) (S.D. Cal. Sep. 26, 2005)

Opinion

Civil No. 04-0518 WQH (JMA).

September 26, 2005


ORDER 1) GRANTING DEFENDANT CLEAVES, VAN BAYLESS, DELAY AND PASCUAL'S MOTIONS TO DISMISS AND/OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT [Doc. Nos. 47, 78]; 2) DENYING PLAINTIFF LEAVE TO FILE SECOND SUPPLEMENTAL COMPLAINT [Doc. No. 88]; 3) DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 104] AND 4) DENYING PLAINTIFF'S MISCELLANEOUS MOTIONS AS MOOT [Doc. Nos. 35, 38, 39, 99, 105, 113]


Plaintiff, Rene Trujillo-Delgado, a federal prisoner now incarcerated at USP Allenwood, in White Deer, Pennsylvania, is proceeding pro se and in forma pauperis, in this civil action filed pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In his Second Amended Complaint ("SAC"), Plaintiff seeks damages against several United States Marshal Service ("USMS") deputies, as well as several unnamed and unidentified Doe defendants, based on claims that they "administer[ed] punishment, corporal in nature by assaulting, torturing, shackling, chaining, and tightly handcuffing," him during pretrial proceedings in United States v. Trujillo, S.D. Cal. Criminal Case No. 04-0096 WQH. Plaintiff claims these acts violated his right to "due process of law; guaranteed [by the] 4th, 5th and 14th Amendment[s]." See SAC ¶ 11.

Because Plaintiff brings this action against federal officials and federal agencies, his complaint is construed as arising under Bivens, 403 U.S. 388, rather than under 42 U.S.C. § 1983. In Bivens, the Supreme Court held that "victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. 14, 18 (1980). Actions under section 1983 and Bivens are identical except for the replacement of the state for the federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).

I. Procedural History

Plaintiff's original Complaint, which named only the "U.S. Attorney General, et al." and the "United States Marshal Service, et al." as Defendants, was dismissed sua sponte before service for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See April 20, 2004 Order [Doc. No. 4]. Specifically, the Court noted that while Plaintiff could bring a damages actions against individual U.S. Marshal Service employees alleged to have violated his constitutional rights under color of federal law in their personal capacities pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), Bivens did not authorize a suit for damages against the government or its agencies. See April 20, 2004 Order at 3 (citing FDIC v. Meyer, 510 U.S. 471, 486 (1994)).

Plaintiff was granted leave to amend however, and on June 4, 2004, he filed a First Amended Complaint [Doc. No. 7], this time naming only U.S. Marshal Service Officers Tan, Cleaves, Van Bayless, DeLay, and John Does 1-3 as Defendants. Because Plaintiff had previously been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), on July 29, 2004, this Court directed the U.S. Marshal to effect service of Plaintiff's Amended Complaint upon Defendants "Tan" (Dale Pascual), Cleaves, Van Bayless and DeLay pursuant to FED.R.CIV.P. 4(c)(2) [Doc. No. 14]. Plaintiff's Amended Complaint does not re-allege any claims against the U.S. Attorney General or the U.S. Marshal Service; therefore, Plaintiff's initial allegations as to those parties remain dismissed for the reasons set forth in the Court's April 20, 2004 Order. Moreover, Plaintiff's Amended Complaint does not re-name either the U.S. Attorney General or the U.S. Marshal Service as Defendants. Thus, even if Plaintiff's original claims against the U.S. Attorney General or the U.S. Marshal Service were not already dismissed, they would be waived by Plaintiff's failure to re-assert them in his Amended Complaint. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

Plaintiff's Amended Complaint (as well as his Second Amended Complaint) misspells Defendant Van Bayless' name as "Bayles."

Plaintiff's Amended Complaint did re-allege claims against "John Does 1-3," but Plaintiff was apparently still unable to identify these parties by name at the time he filed his Amended Complaint. While disfavored, "Doe" pleading is permitted in federal court when the identity of alleged defendants is not known prior to the filing of a complaint. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover their identities, or that the complaint would be dismissed on other grounds. Id. (emphasis added). However, "authorities clearly support the proposition that John Doe defendants must be identified and served within 120 days of the commencement of the action" against them. Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995); FED.R.CIV.P. 4(m) 15(c)(1).

On August 30, 2004, Magistrate Judge Jan M. Adler granted Plaintiff's Motion for Leave to Amend [Doc. No. 17], and gave him until October 12, 2004, to file and serve a Second Amended Complaint [Doc. No. 19]. On October 27, 2004, Plaintiff's Second Amended Complaint, while late, was accepted for filing [Doc. No. 29]. Plaintiff's Second Amended Complaint re-names only U.S. Marshal Service Deputies Cleaves, Van Bayless, and DeLay as Defendants, and it identifies Dale Pascual, previously also identified as "Officer Tan" for the first time as John Doe "Officer #2." See SAC at 1, 3, 6; see also Doc. No. 24 "Return of Service" upon "Officer Tan (Dale Pascual)"]. Defendants DeLay, Cleaves, Van Bayless were served with both Plaintiff's Amended, as well as his Second Amended Complaints [Doc. Nos. 20, 21, 23, 40, 43, 44]. Defendant Pascual, identified for the first time in Plaintiffs Second Amended Complaint, was also served with that pleading and summons [Doc. No. 45].

Plaintiff's Second Amended Complaint does not re-allege any claims, nor does it name "Officer Tan" as a Defendant. Thus, like those originally alleged against the U.S. Attorney General and the U.S. Marshal Service, any claims Plaintiff previously asserted against "Officer Tan," to the extent he is not the same person later identified and served as "Dale Pascual," have been waived by virtue of his failure to re-assert them in his Second Amended Complaint. See King, 814 F.2d at 567.

On March 22, 2005, Defendants Cleaves, Van Bayless and DeLay, all represented by the United States' Attorneys' Office, filed a "Motion to Dismiss and in the alternative for Summary Judgment" [Doc. Nos. 47-1, 47-2]. However, on April 11, 2005, Plaintiff requested the entry of default as to Defendant Pascual [Doc. No. 53]. On April 18, 2005, the Clerk entered default as to Defendant Pascual pursuant to FED.R.CIV.P. 55(a) for failing to timely plead or otherwise defend against the allegations raised in Plaintiff's Second Amended Complaint pursuant to FED.R.CIV.P. 12(a) [Doc. No. 54]. On May 10, 2005, however, the Court set aside the default entered as to Pascual, and permitted Defendant Pascual to file his own "Motion to Dismiss and in the Alternative for Summary Judgment." [Doc. No. 78-1, 78-2]. Plaintiff has filed an Opposition to both Motions [Doc. No. 69], as well as a Motion for a Temporary Restraining Order [Doc. No. 65] and a Motion for Recusal pursuant to 28 U.S.C. § 455 [Doc. No. 93], both of which have been denied [Doc. Nos. 81, 96].

Currently pending are other numerous and miscellaneous pretrial Motions related to amendment, service, discovery, the appointment of counsel and for partial summary judgment filed by Plaintiff [Doc. Nos. 35, 38, 39, 98, 99, 104, 105, 113], as well as motions to dismiss and/or in the alternative for summary judgment filed by USMS Defendants Cleaves, Van Bayless and DeLay [Doc. No. 47], and USMS contract guard Pascual [Doc. No. 78].

All these matters have been ordered submitted for hearing without oral argument pursuant to S.D. CAL. CIVLR 7.1.d.1 [Doc. No. 57] and are addressed in this Order.

II. Factual Allegation in Plaintiff's Second Amended Complaint

Plaintiff claims that on January 29, 2004, he was a pretrial detainee in custody of the United States Marshal's Service and waiting in this Court's holding cells for a court appearance in a criminal matter. See FAC ¶ 11; Ex. A. Pl.'s "Statement of the Essential Facts" Affidavit #1 at 1. Plaintiff alleges the Marshals had just served lunch when he observed a U.S. Marshal ("Officer #1) standing "with his arms crossed quietly while . . . other officers spoke to a man [i]n a wheelchair with a medical request for his psychiatric medication." See Pl.'s Ex. A, Affidavit #1 at 1. Plaintiff then describes "a lot of screaming back and forth" when at some point Officer #1 "turn[ed] and walk[ed] over to the bullpen" and "randomly" picked Plaintiff "from all [the detainees] talking inside," approached Plaintiff "face to face" and "invade[d] [his] air space," by screaming "Shut the fuck up and sit the fuck down." Id. Plaintiff claims he was "shocked and resented [Officer #1's] way of approaching the situation and the way he publicly embarrassed [him]" by "belittling [him] in front of other inmates." Id. Plaintiff claims he told Officer #1 "not to yell at [him] and in [his] face." Officer #1 allegedly replied, "I can do more than that, I can keep you in here until 6 p.m." Officer #1 then "commanded [Plaintiff] to go and sit down." Plaintiff again retorted with "You don't have a reason to yell at me like that and don't threaten me." Id. Plaintiff then claims he "proceeded to sit down on the bench." Id.

Plaintiff then claims that Officer #1 pointed him out to Officer #2 (first identified as "Officer Tan (Dale Pascual)") who ordered him to the bars of the "bullpen" and then to "come outside." Id. Plaintiff asked, "Why me?" and "Where are you taking me?" Id. Officer #3 allegedly "just st[ood] there watching the whole situation unfold." Id.

Officer #1 continued "yelling down the hallway, `I told you that I would keep you down here until 6 p.m.,'" and Plaintiff "told him again not to threaten me." Id. Officer #1 said, "This is not a threat, but a promise," as Defendant Pascual "exten[ded] his forearm to [Plaintiff's] chest and pushe[d] back on [him] while Officer #1 and [he] spoke." Id. Plaintiff next claims that "he" (either Officer #1 or Pascual) "turn[ed] [Plaintiff] with his arms" and shoved and ordered him down the hallway. Id. Plaintiff claims he asked someone to "cool it" while he began walking, but that "suddenly" Pascual "grab[bed] [him] by the neck and wrist and with a swirling movement resembling a Judo hold," placed him "face first" against wall and into a comer. Id. Pascual is alleged to have "beg[u]n making his point through more threats and yelling." Id.

Officer #3 then "told both of us to relax" and assured Plaintiff that "all would be well if [he] remain[ed] calm." Id. Plaintiff then claims Pascual continued "holding [him] with the same grip . . . walk[ed] [him] down a long hallway to tanks intended for Attorney [i]nterview purposes only." Plaintiff was "placed into this tank with a screen and no bathroom after lunch for 2-3 hours." Id. at 1-2. Plaintiff alleges to have "yelled and yelled" inside the tank until another unidentified U.S. Marshal arrived, and asked if he was OK. Plaintiff requested access to a bathroom. Officer #3 then arrived, asked if he was "alright" and accompanied Plaintiff back to the "original bullpen." Id. at 2.

Plaintiff claims he was then returned to the Metropolitan Correctional Center ("MCC") with the other inmates, where he reported the courthouse incident with a "Lieutenant at the MCC and to the Lieutenant Marshal at Court." Id. Plaintiff claims he "did a deposition to investigating officers," gave a verbal statement, and "received a medical evaluation." Id.; SAC ¶ 11(A). However, nowhere in Plaintiff's Second Amended Complaint, or in the Exhibits or Affidavits attached, does Plaintiff allege any physical injury as a result of the January 29, 2004 incident.

Plaintiff does state that "medical corroboration of injuries is also possible at this time, but requires subpoena to the Bureau of Prisons to release medical records." SAC at 6. Regardless of whether this is true, or whether Plaintiff could engage in discovery which might provide corroboration for his injuries, his Second Amended Complaint alleges no injury at all.

Plaintiff also alleges that Defendant Cleaves and Bayless "conspired" and retaliated against him for "reporting the incident" involving "Officer Pascual and his group of officers" to the U.S. Marshal cell-block supervisor. Plaintiff claims he "feared for his safety" and therefore, intended to ask the Court for a restraining order against Pascual, because it had become "obvious" to him that "the Internal Affairs investigation had been a smoke screen and left to judicial limbo." See SAC at 3-5; Pl.'s Ex. A, Affidavit #2. Plaintiff claims Cleaves, at the request of Defendant DeLay, "transferred him to another cell" away from Pascual, and later ordered Bayless "to cuff, chain, and shackle [Plaintiff] when going to court." Id. ¶ 11(B) at 4; see also Pl.'s Ex. A, Affidavit #2. Plaintiff claims he was likewise ordered shackled and cuffed "on the cell block" and in the "cell at the courtroom holding tank." Id.

Plaintiff claims that these actions deprived him, as a pretrial detainee, of his "4th, 5th and 14th Amendment rights." SAC at 4. Plaintiff seeks declaratory and injunctive relief, as well as "monetary punitive damages to . . . compensate [him]," as well as attorney's fees and costs. Id. at 10-15.

III. Plaintiff's Second Motion for Appointment of Counsel [Doc. No. 104]

As a preliminary matter, the Court addresses Plaintiff's second Motion for Appointment of Counsel [Doc. No. 104]. The Court denied Plaintiff's first request for appointment of counsel on June 10, 2004 [Doc. No. 13].

"There is no absolute right to counsel in civil proceedings." Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

As noted in this Court's June 10, 2004 Order, however, district courts do have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to "request" that an attorney represent indigent civil litigants upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). "A finding of exceptional circumstances requires an evaluation of both the `likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision.'" Terrell, 935 F.2d at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

Plaintiff repeats his request for counsel, in part because he is "unable to afford counsel," and has no "formal training in the law;" however, Plaintiff primarily seeks counsel because he believes his case to be "complex" in that it "involves medical issues that require expert medical and law enforcement testimony." See Doc. No. 104 at 1-2.

First, the Court again finds that Plaintiff does appear to have a sufficient grasp of his case, the legal issues involved, and is able to adequately articulate the factual basis of his claims. In fact, while proceeding without counsel, Plaintiff has successfully requested default as to one Defendant and has continuously submitted various motions and requests in order to vigorously prosecute this action. Plaintiff has likewise never failed to respond to any of Defendants' submissions. Second, the Court notes that while Plaintiff has apparently sought and has been receiving medical treatment for his shoulder at USP Allenwood, his Second Amended Complaint alleges only excessive force, conspiracy and retaliation claims against USMS Deputies and USMS contract guard Pascual arising in San Diego in January 2004. As this Court noted in its May 18, 2005 Order Denying Plaintiff's Motion for TRO and Preliminary Injunction, "[n]o USP Allenwood official has been named as a party" and Plaintiff's Second Amended Complaint alleges no inadequate medical care claims arising at Allenwood. See Doc. No. 81 at 5. Moreover, this Court also found that Plaintiff "failed to establish either an imminent irreparable injury, or the likelihood of success on the merits" of the excessive force claims raised in his Second Amended Complaint. Id.

For these reasons, the Court finds that Plaintiff has failed to plead facts sufficient to show the "exceptional circumstances" required by 28 U.S.C. § 1915(e)(1) and therefore DENIES Plaintiff's Second Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 104].

IV. Defendants' Motions to Dismiss/for Summary Judgment [Doc. Nos. 47, 78]

A. Defendants' Arguments

Defendants argue that Plaintiff's Second Amended Complaint should be dismissed under FED.R.CIV.P.12(b)(6) and/or in the alternative, that they are entitled to summary judgment pursuant to FED.R.CIV.P.56 for the following reasons: 1) the entire action should be dismissed for lack of timely service and personal jurisdiction because while Plaintiff served USMS Deputies Cleaves, Van Bayless and DeLay, as well as contract guard Pascual individually via a USM Service Form 285, "he has never served the United States Attorney as required by FED.R.CIV.P. 4(i)(2)(B) in order to sue a federal employee in his individual capacity;" (2) qualified immunity bars Plaintiff's claims for damages; (3) Defendant DeLay may not be held vicariously liable for the actions of others; and (4) Plaintiff's claims for declaratory and injunctive relief are moot. See Defs.' Cleaves' Van Bayless and DeLay's Mem, of PAs in Supp. of Mot. to Dismiss/or for Summ. J. [Doc. No. 48] at 6-14; Def,' Pascual's Mem. of PAs in Supp. of Mot. to Dismiss/or for Summ. J. [Doc. No. 79] at 4-10. Plaintiff opposes on all grounds. See Pl.'s Mot. in Opp'n to Defs.' Motions [Doc. No. 69], Brief in Opp'n [Doc. No. 73], Pl.'s Affidavit in Supp. of Civil Compl. [Doc. No. 75], and Pl.'s Exhibits in Supp. of Opp'n [Doc. No. 76]. The USMS Defendants (Cleaves, Van Bayless and DeLay) have also filed a Reply [Doc. No. 82].

B. Plaintiff's Failure to Serve the U.S. Attorney

All Defendants first move to dismiss this action because, while Plaintiff properly served all the individual Defendants, Plaintiff did not also serve the United States Attorney as required by FED.R.CIV.P.4(i)(1) and (2)(B). However, the Ninth Circuit has held that such service is not required when the Plaintiff does not bring suit against the United States, but instead, files a Bivens action against individual federal officers for acts taken under color of federal law and in their individual capacities. See Vaccarro v. Dobre, 81 F.3d 854, 856 (9th Cir. 1996) (noting that a "Bivens action is, by definition, against defendants in their individual and not their official capacity."). "Because [Plaintiff] did not and could not have sued the United States or its officers in their official capacity upon a Bivens claim, it necessarily follows that he did not have to serve the United States." Id. at 857.

Plaintiff's Second Amended Complaint does allege that "[a]ll Defendant(s) acted in bad faith in their individual and official capacities during all violations against the Plaintiff," see SAC ¶ 9, however, the Ninth Circuit requires that courts liberally construe the question of whether defendants are sued in their individual or officials capacities in pro se cases. See Ashker v. Garcia, 112 F.3d 392, 395 (9th Cir. 1997). In § 1983 cases, where the plaintiff seeks damages against a state official, this "`necessarily implies' a personal capacity suit because an official capacity suit for damages would be barred [by the sovereign immunity]." Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 n. 16 (9th Cir. 1994). The same is true here. Plaintiff cannot seek damages against Defendants for acts taken in their official capacity under Bivens because such a suit is barred by sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 486 (1994). In addition, for the reasons discussed in this Order, Plaintiff's claims for equitable relief against the individually named and served Defendants are moot. Therefore, all that remains, and all that Bivens permits, are Plaintiff's claims for damages against Defendants for allegedly unconstitutional acts taken in their individual capacities. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988); Vaccaro, 81 F.3d at 857.

For this reason, and because a failure to perfect such a technical service requirement in a pro se case where it is evident that the United States Attorney, was, in fact, on notice of Plaintiff's claims against the individual officials, and Defendants have not shown any prejudice as a result of Plaintiff's failure to also serve the United States separately, see United Food Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984) ("Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint."), Defendants' Motions to Dismiss for failure to properly effect service under FED.R.CIV.P. 4(i)(2)(B) are DENIED.

C. Defendants' Arguments in re Qualified Immunity

Because the Court need not go beyond the pleadings in order to decide the remaining issues raised by Defendants' Motions, and because they all raise a qualified immunity defense, it shall apply FED.R.CIV.P. 12(b)(6) to Plaintiff's allegations in order to decide whether Plaintiff's Second Amended Complaint "states a claim of violation of clearly established law." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ("Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."). This is because qualified immunity entitles government officials to "an immunity from suit rather than a mere defense to liability." Id. It requires that "insubstantial claims" be resolved as quickly as possible. Anderson v. Creighton, 483 U.S. 635 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982); Saucier, 533 U.S. 194, 200 (2001) ("Qualified immunity is an `entitlement not to stand trial or face the other burdens of litigation.'") (citation omitted). Therefore, qualified immunity should be determined "at the earliest possible point in the litigation," Saucier, 533 U.S. at 201, and ideally, before any "broadreaching discovery is permitted." Crawford-El v. Britton, 523 U.S. 574, 583 n. 14 (1998).

1. Standard of Review

A Rule 12(b)(6) motion tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A claim may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). In deciding such a motion, all material factual allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them. Cahill, 80 F.3d at 338. Dismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory. Navarro, 250 F.3d at 732 (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). However, the court need not accept all conclusory allegations as true; rather, it must "examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); Benson v. Arizona State Bd. of Dental Examiners, 673 F.2d 272, 275-76 (9th Cir. 1982) (court need not accept conclusory legal assertions); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977) ("Conclusory allegations, unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights Act."); accord Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984) ("All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984).

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dep't of Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). Thus, when resolving a motion to dismiss for failure to state a claim, the court may not generally consider materials outside the pleadings. Id. This precludes consideration of "new" allegations that may be raised in a plaintiffs opposition to a motion to dismiss brought pursuant to FED.R.CIV.P. 12(b)(6). Id. (citing Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993); 2 Moore's FEDERAL PRACTICE, § 12.34[2] (Matthew Bender 3d ed.) ("The court may not . . . take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a).")). However, the court may consider documents or exhibits "whose contents are alleged in a complaint and whose authenticity no party questions." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994); Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1555 (9th Cir. 1990); Stone v. Writer's Guild of Am. W. Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).

2. Qualified Immunity

As noted, the entitlement to qualified immunity "is an immunity from suit rather than a mere defense to liability." Mitchell, 472 U.S. at 526. The defense protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This standard "`gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)); Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001); Saucier v. Katz, 533 U.S. 194, 205 (2001) ("The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct.").

However, the affirmative defense of qualified immunity does not extend to claims for declaratory or injunctive relief. Keenan v. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996) (citing American Fire, Theft Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991); see also Wood v. Strickland, 420 U.S. 308, 314 n. 6 (1975) ("[I]mmunity from damages does not ordinarily bar equitable relief as well."). In his Second Amended Complaint, Plaintiff seeks a declaratory judgment, an "interlocutory" and permanent injunction preventing Defendants from harassing, coming into contact with him, preventing his access to the court and generally compelling discovery from them, as well as "monetary punitive damages to . . . compensate" him, in addition to attorneys' fees and costs. See SAC at 10-14. However, Plaintiff is no longer in the custody of the U.S. Marshal's Service in San Diego, and is now serving his criminal sentence at USP-Allenwood, in White Deer, PA. See Pl.'s Change of Address [Doc No. 32]. Therefore, the claims for equitable relief alleged in his Second Amended Complaint, all related to the individual U.S. Marshals and the contract guard named as Defendants, and all arising while he was in custody of the U.S. Marshals Service and awaiting trial in San Diego, are moot. See Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975) (An inmate's release or transfer from the custody of one institution to another while his claims are pending generally moots any claims for equitable relief); accord Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Only Plaintiff's claims for damages remain.

The required first step in a qualified immunity analysis is, "taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201; Jackson v. City of Bremerton, 268 F.3d 646, 650 (9th Cir. 2001); Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir. 2003) (noting that because qualified immunity is "`an entitlement not to stand trial' . . . courts, not juries, [must] settle the ultimate questions of qualified immunity") (quoting Mitchell, 472 U.S. at 526). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201; Haynie v. County of Los Angeles, 339 F.3d 1071, 1078 (9th Cir. 2003).

a. Excessive Force Claims

1. Prong One — Violation of Constitutional Right

Plaintiffs primary Bivens claim is based on his allegation that all Defendants subjected him to excessive force. First, Plaintiff claims Defendant Pascual pushed and shoved him outside the USMS holding tank hallway on January 29, 2004. Second, Plaintiff claims USMs Cleaves, Van Bayless and DeLay used excessive force when requesting, authorizing and/or placing him in shackles or other forms of restraint during subsequent court appearances.

The Eighth Amendment prohibition against cruel and unusual punishment is designed to protect those convicted of crimes. Ingraham v. Wright, 430 U.S. 651, 673 (1977). Thus, pretrial detainees, like plaintiff, are not protected by the Eighth Amendment's proscription against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979); Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989). Instead, pretrial detainees are protected from cruel and unusual punishment by the Due Process Clause. United States v. Salerno, 481 U.S. 739, 746-47 (1987). The Supreme Court has held that under that clause, "a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Bell, 441 U.S. at 536. However, a pretrial detainee may be subjected to "restrictions and conditions . . . so long as those conditions and restrictions do not amount to punishment, or otherwise violate the constitution." Id. at 537-38.

Because Plaintiff alleges the use of excessive force by federal officials, his claims arise under the Due Process Clause of the Fifth Amendment; however, courts look to Eighth Amendment principles when reviewing excessive force claims of pretrial detainees. See Gary H. v. Heggstrom, 831 F.2d 1430, 1432 (9th Cir. 1987) (the Due Process Clause "implicitly incorporates the cruel and unusual punishments clause standards"); White v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990) (noting that courts should examine cases which set the standard for violation of the Eighth Amendment when determining whether a pretrial detainee's due process rights are violated.).

Any physical application of force against a person in custody, whether it be through brute strength, chemical or other weaponry, or mechanical restraint, may not be excessive. See Whitley v. Albers, 475 U.S. 312 (1986) (prison shooting); Hudson v. McMillian, 503 U.S. 1 (1992) (prison beating); LeMaire v. Maass, 12 F.3d 1444, 1450-53, 1457, 1460 (9th Cir. 1993) (prison's use of in-shower and in-cell leg and waist restraints). "That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 10 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights"). In order to violate the Eighth Amendment, the Defendant must use force which is "unnecessary" and "wanton." Whitley, 475 U.S. at 319. "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Id.

Thus, a constitutional violation can only be established if force was used "maliciously and sadistically for the purpose of causing harm." Id.; see also Wilson v. Seiter, 501 U.S. 294, 298 (1991) (claims that an official has inflicted cruel and unusual punishment contain both an objective component as well as a subjective "inquiry into the prison official's state of mind"). The Supreme Court has also clearly stated that the Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimus uses of physical force, provided that the use of force is not the sort "repugnant to the conscience of mankind." Hudson, 503 U.S. at 10.

The Court must evaluate the threat reasonably perceived by the responsible officials as compared to the amount of force which was used. Id. Thus, to determine whether an excessive force claim arises under either the Eighth Amendment or the Due Process Clause, courts consider four factors: (1) the need for the application of force; (2) the relationship between the need to use force and the amount of force used; (3) the extent of the injury inflicted; and (4) whether the force was applied in a good faith effort to maintain or restore discipline or to maliciously and sadistically cause harm. Id. at 7; White, 901 F.2d at 1507.

Here, the Court finds that none of Plaintiffs allegations are sufficient, even when construed, as they must be, in the light most favorable to him, to show a violation of his constitutional right to be free from excessive force. See Saucier, 533 U.S. at 201; see also Crawford-El, 523 U.S. at 598 (to overcome a qualified immunity defense, the plaintiff must provide "specific, nonconclusory factual" detail to support his claims).

As to Defendant Pascual, Plaintiff claims only that, after there had been "a lot of screaming back and forth" both inside and outside the holding cell on January 29, 2004, and after Plaintiff has already engaged in a verbal altercation with Officer #1 which Plaintiff admits "shocked," "embarrassed" and "belitted" him, Pascual "asked him to come to the bars of the bullpen" and outside the cell. See Pl.'s Ex. A, Affidavit 1. Plaintiff further admits feeling resentful and was vocal about telling both Officer #1 and Pascual "not to threaten [him]." Id. As Plaintiff exited the cell, Pascual is alleged only to "extend his forearm to [Plaintiff's] chest," and to have "push[ed] back on [him]" while Plaintiff and Officer #1 spoke. Id. Pascual is then alleged to have "ordered" and "shoved" Plaintiff down the hallway, while Pascual "grab[bed] [him] by the neck and wrist," and "with a swirling movement resembling a Judo hold," faced him into a wall in the corner." Id. While these allegations show that Pascual applied some force, they also reveal that Pascual and the other officers in the cellblock were responding to a need to defuse a potentially dangerous and escalating situation by removing a demonstrably upset detainee from others. See Hudson, 503 U.S. at 7; White, 901 F.2d at 1507 (finding no excessive force used against a pretrial detainee whose noncompliant actions "created a need for [Defendants] to apply reasonable force to control him."). The amount of force used under the circumstances described by Plaintiff — an "extended forearm" across Plaintiffs chest, a "shove" a "push" and the placement of Pascual's hands on the back of Plaintiff's neck and on his wrist — all are consistent with a good faith effort to restore order and control over an admittedly threatening and noncompliant detainee. Hudson, 503 U.S. at 7; White, 901 F.2d at 1507; see also Saucier, 533 U.S. at 208 (expressing doubt as to whether a "gratuitously violent shove" could constitute excessive force). Moreover, Plaintiff has alleged absolutely no facts to show the extent, nature or even existence of any injury, caused by Defendant Pascual, which was more than "de minimus." Hudson, 501 U.S. at 7 ("[T]he extent of injury suffered by an inmate . . . may suggest `whether the use of force could plausibly have been thought necessary' in a particular situation, `or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.'") (quoting Whitley, 475 U.S. at 321 (italics added)). Nor has Plaintiff alleged any other facts which would imply Pascual's actions were "malicious" or "sadistic." Id. After applying these Hudson factors, the Court finds Plaintiff's Second Amended Complaint fails to show a violation of Plaintiff's constitutional rights. Saucier, 533 U.S. at 201.

Plaintiff's excessive force allegations as to Defendants Cleaves, Van Bayless and Delay are even more tenuous. Plaintiff claims only that the "cell block supervisor Charlie Cleaves ordered" his deputies to shackle Plaintiff to all his court hearings after the January 29, 2004 incident. See SAC at 3; Pl.'s Ex. A., Affidavit #2. Plaintiff claims Defendant Bayless was an "Internal Affairs Investigator" who interviewed him on January 30, 2004, and "was the one [who] cuff[ed]" him during a subsequent court appearance." Id. The only allegation as to De Lay is that he "failed to notify" Plaintiff "or even the shift officer" "of any concern at having all of [the detainees involved in the] previous incident together." Id.

Thus, while it is far from clear, Plaintiff's allegations, liberally construed and taken in the light most favorable to him, challenge both the need and the decision to place him in restraints while transporting him between holding cells and into the courtroom following the January 29, 2004 incident involving Defendant Pascual. While Plaintiff believes this restraint "excessive," Ninth Circuit authority clearly shows that the mere use of shackles, cuffs and waist chains are clearly reasonable under the circumstances alleged in Plaintiff Second Amended Complaint. See Spain v. Procunier, 600 F.2d 189, 198 (9th Cir. 1979) ("The movement of prisoners outside the prison inherently presents a serious threat to their guards and the population at large. Under these circumstances, we do not consider that the use of mechanical restraints such as leg manacles or waist chains, in addition to handcuffs, is excessive or unreasonable); see also LeMaire, 12 F.3d 1448, 1457. Nothing in Plaintiff's pleading could support a conclusion that these Defendants acted with the "malicious and sadistic intent to cause [Plaintiff] harm." Hudson, 503 U.S. at 7. Moreover, Plaintiff likewise fails to allege that any injury he may have suffered was more than de minimus and either caused by or exacerbated by the wrist, waist or other forms of shackling employed by Defendants Cleaves, Van Bayless or DeLay. Id.

Thus, after applying Hudson's factors to Cleaves, Van Bayless and DeLay's actions, the Court also finds Plaintiff's Second Amended Complaint fails to show a violation of any constitutional right. Saucier, 533 U.S. at 201.

2. Prong Two — Clearly Established Law

Because the Court has found that Plaintiff's allegations, even presumed true, fail to establish that any Defendant used excessive force against him in violation of the Constitution, no further inquiries into qualified immunity are necessary. See County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998) ("[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged the deprivation of a constitutional right at all."); see also Saucier, 533 U.S. at 201 ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity."); Valdez v. Rosenbaum, 302 F.3d 1039, 1043 (9th Cir. 2002) (if facts alleged do not show that defendants violated constitutional rights, no further qualified immunity analysis is necessary).

Thus, Defendants' Motions to Dismiss and in the alternative for Summary Judgment [Doc. Nos. 47, 78] are hereby GRANTED.

b. Sua Sponte Dismissal of Conspiracy, Retaliation and Reprisal Claims

While Defendants' Motions do not address Plaintiff's claims that they shackled him after the January 29, 2004 incident by "conspiring" against him and "on reprisal" for his "reporting the unethical, malicious and felonious acts" of Defendant Pascual, see SAC at 3; Pl.'s Ex. A. Affidavits 1 2, this Court finds that sua sponte dismissal of these remaining claims is required under 28 U.S.C. § 1915(e)(2) and § 1915A(b).

1. Standard of Review

The Prison Litigation Reform Act (PLRA) significantly amended the in forma pauperis provisions of 28 U.S.C. § 1915 to obligate the Court to review, sua sponte, any complaint filed by filed by a prisoner who is "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," and which "seeks redress from a governmental entity or officer or employee of a governmental entity," "as soon as practicable after docketing." See 28 U.S.C. § 1915A(b). Section 1915(e)(2) similarly requires the court to sua sponte dismiss any case brought in forma pauperis "at any time" it finds the complaint is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A; Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). However, while liberal construction is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the court may nevertheless not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

2. Conspiracy

To state a claim of conspiracy, the plaintiff must allege facts to show: (1) an agreement between the defendants to deprive the plaintiff of a constitutional right; (2) an overt act in furtherance of the conspiracy and; (3) a constitutional violation. See Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999) (en banc); Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Because conspiracies, by their very nature, are secret agreements, "[a] defendant's knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the defendant's actions." Gilbrook, 177 F.3d at 857-58.

However, pleading a conspiracy requires more than a conclusory allegation that defendants conspired to deprive plaintiff's civil rights. The Ninth Circuit applies a heightened pleading standard to conspiracy claims under Section 1983 and has held that mere conclusory allegations of conspiracy ( i.e. a bare allegation that a defendant "conspired" with another) are insufficient to state a claim. See Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997); Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992); Woodrum v. Woodward County, 866 F.2d 1121, 1126-27 (9th Cir. 1989). Rather, "[t]o state a claim for a conspiracy to violate one's constitutional rights . . ., the plaintiff must state specific facts to support the existence of the claimed conspiracy." Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989); see also Lee v. City of Los Angeles, 250 F.3d 668, 679 n. 6 (9th Cir. 2001) (holding that plaintiffs must allege facts which are "specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity."); Buckey, 968 F.2d at 794. A plaintiff can meet the heightened pleading standard by alleging "which defendants conspired, how they conspired and how the conspiracy led to a deprivation of his constitutional rights even though he does not identify which officer said or did what at which particular time." Harris, 126 F.3d at 1196.

The Ninth Circuit has specifically held that conspiracy claims, since they require the plaintiff to show that the defendant agreed to join the conspiracy, see Margolis, 140 F.3d at 853, are subject to this heightened pleading standard. See Harris, 126 F.3d at 1195; Mendocino Envtl. Ctr. v. Mendocino County, 14 F.3d 457, 459 (9th Cir. 1994) (applying identical standard to conspiracy claim in Bivens action). Although the Ninth Circuit recently eliminated the application of a heightened pleading standard to all cases where an improper motive is an element, it did not modify the requirement in regard to allegations of conspiracy. See Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

Here, Plaintiff uses the word "conspiracy" and suggests one existed; however, he has alleged absolutely no facts which show an agreement or meeting of the minds to violate any of his constitutional rights. Woodrum, 866 F.2d at 1126; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (conclusory allegations of conspiracy insufficient to support a claim).

Accordingly, the Court sua sponte dismisses Plaintiff's conspiracy claims pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

3. Retaliation

The Constitution provides protections against "deliberate retaliation" by prison officials against an inmate's exercise of his right to petition for redress of grievances. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Because retaliation by prison officials may chill an inmate's exercise of his legitimate First Amendment rights, such conduct is actionable even if it would not otherwise rise to the level of a constitutional violation. Thomas v. Carpenter, 881 F.2d 828, 830 (9th Cir. 1989). However, there must be a causal connection between the allegedly retaliatory conduct and the action that purportedly provoked the retaliation. Thus, "timing can properly be considered as circumstantial evidence of retaliatory intent." Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). However, a plaintiff must show that the protected conduct was a "substantial" or "motivating" factor in the defendant's decision to act. Soranno's Gasco, 874 F.2d at 1314; Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

Thus, in order to state a claim for retaliation, a plaintiff must allege sufficient facts to show: (1) he was retaliated against for exercising his constitutional rights, (2) the alleged retaliatory action "does not advance legitimate penological goals, such as preserving institutional order and discipline," Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam), and (3) the defendants' actions harmed him. See Resnick, 213 F.3d at 449 (9th Cir. 2000); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997); but see Rhodes v. Robinson, 380 F.3d 1183, 1131 (9th Cir. 2004) ("Our cases, in short, are clear that any retribution visited upon a prisoner due to his decision to engage in protected conduct is sufficient to ground a claim of unlawful First Amendment retaliation — whether such detriment "chills" the plaintiff's exercise of his First Amendment rights or not.").

"[A] retaliation claim may assert an injury no more tangible than a chilling effect on First Amendment rights." Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001). "Without alleging a chilling effect, a retaliation claim without allegation of other harm is not actionable." Id. "Of course, that statement only makes sense if harms entirely independent from a chilling effect can ground retaliation claims." Rhodes, 380 F.3d at 1131.

Here, plaintiff has failed to show how Van Cleaves, Van Bayless or DeLay's actions in either requesting, authorizing or carrying out the order to shackle him during court appearances was "caused" by the exercise of a constitutional right, i.e., filing a complaint related to Pascual's alleged actions on January 29, 2004. See Soranno's Gasco, 874 F.2d at 1314. In addition, Plaintiff has failed to allege facts which show that the decision to shackle him failed to "advance legitimate . . . goals," Barnett, 31 F.3d at 815-16, that he was shackled because he elected to exercise a constitutional right, Rhodes, 380 F.3d at 1131, or that he was otherwise `chilled' in relation to the exercise of his rights. Resnick, 213 F.3d at 449; Hines, 108 F.3d at 269.

Therefore, the Court also must sua sponte DISMISS Plaintiff's retaliation claims pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

V. Dismissal of Remaining Unserved Doe Defendants per FED.R.CIV.P. 4(m)

In addition to Defendants Cleaves, Van Bayless, DeLay and Pascual, Plaintiff's Second Amended Complaint also names "U.S. Marshal Service Officer John Doe(s) #1 through 3, et al.," as Defendants in its caption. To the extent that the body of Plaintiff's Second Amended Complaint identifies "John Doe Officer #2" as Defendant Pascual, Plaintiff's claims have been dismissed for the reasons set forth above. However, as to those Does who remain, but have never been identified or served, Federal Rule of Civil Procedure 4(m) requires their dismissal. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be identified and served within 120 days of the commencement of the action against them); FED.R.CIV.P. 4(m) (defendants must be served within 120 days after the filing of the complaint.); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that one "becomes a party officially, and is required to take action in that capacity, only upon service of summons or other authority-asserting measure stating the time within which the party served must appear to defend."). "In the absence of service of process (or waiver of service by the defendant)," under FED.R.CIV.P. 4, "a court ordinarily may not exercise power over a party the complaint names as a defendant." Id.

For these reasons, the Court hereby DISMISSES all persons identified only as Does in Plaintiff's Second Amended Complaint pursuant to FED.R.CIV.P. 4(m).

VI. Plaintiff's Motions

A. Motion for Leave to Supplement Second Amended Complaint [Doc. No. 88]

In his "Motion for Leave to Supplement Second Amended Complaint," [Doc. No. 88], Plaintiff seeks leave to supplement his pleading in order to allege additional inadequate medical care claims arising at USP Allenwood as a result of the injury to his shoulder he claims to have sustained as a result of the January 2004 incident in San Diego.

Federal Rule of Civil Procedure 15(d) provides the mechanism for supplemental pleading: "Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." FED.R.CIV.P. 15(d). While leave to permit supplemental pleading is generally "favored," Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988), "it cannot be used to introduce a `separate, distinct and new cause of action,'" Planned Parenthood of Southern Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997); see also, 6A Wright, Miller, Kane, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1509 (1990) (noting that leave to file a supplemental pleading will be denied where "the supplemental pleading could be the subject of a separate action").

Here, the Court finds that while Plaintiff's purported injury may have been sustained, or at least exacerbated by the actions of the current Defendants, any claim that USP Allenwood medical officials are providing him inadequate medical treatment almost a year and a half later, is a the "subject of a separate action" against separate individuals in separate facility and arising under a wholly distinct set of facts not related to the Defendants currently subject to the jurisdiction of this Court. See Neely, 130 F.3d at 402. Therefore, Plaintiff's Motion for Leave to Supplement his Second Amended Complaint pursuant to FED.R.CIV.P. 15(d) is DENIED.

B. Motions Related to Service, Discovery and for Summary Judgment (Partial)

Finally, because the Court has found that Plaintiff's Second Amended Complaint fails to state a clearly established excessive force, conspiracy or retaliation claim as to any Defendant, and that Defendants Cleaves, Van Bayless, DeLay and Pascual are all entitled to qualified immunity, Plaintiff's remaining Motions for "Preservation of Best Evidence" [Doc. No. 35], "Motion to Strike" [Doc. No. 38], "Motion for Sua Sponte Order" [Doc. No. 39], "Motion to Produce for Inspection" [Doc. No. 99], his "Motion for leave to Conduct Discovery (Limited) [Doc. No. 105], as well as his "Motion for Summary Judgment (Partial)" [Doc. No. 113], are hereby DENIED as moot.

VII. Conclusion and Order

For all the reasons set forth above, the Court hereby:

(1) GRANTS Defendants' Motions to Dismiss or in the alternative for Summary Judgment [Doc. Nos. 47, 78];
(2) DENIES Plaintiff's Motion for Appointment of Counsel [Doc. No. 104];
(3) DENIES Plaintiff's Motion for Leave to Supplemental Second Amended Complaint [Doc. No. 88];
(4) DISMISSES sua sponte Plaintiff's conspiracy and retaliation claims pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b);
(5) DISMISSES all unidentified and unserved Doe Defendants for failing to prosecute pursuant to FED.R.CIV.P. 4(m); and
(6) DENIES Plaintiff's Motion for Preservation of `Best Evidence' [Doc. No. 35]; Motion to Strike [Doc. No. 38]; Motion for Sua Sponte Order [Doc. No. 39]; Motion to `Produce for Inspection' [Doc. No. 99]; Motion for Leave to Conduct Discovery (Limited) [Doc. No. 105]; and Motion for Summary Judgment (Partial) [Doc. No. 113], as moot.

The Clerk shall enter judgment for Defendants and shall close the file.

IT IS SO ORDERED.


Summaries of

Delgado v. U.S. Attorney General

United States District Court, S.D. California
Sep 26, 2005
Civil No. 04-0518 WQH (JMA) (S.D. Cal. Sep. 26, 2005)
Case details for

Delgado v. U.S. Attorney General

Case Details

Full title:RENE TRUJILLO DELGADO, Plaintiff, v. U.S. ATTORNEY GENERAL, et al.…

Court:United States District Court, S.D. California

Date published: Sep 26, 2005

Citations

Civil No. 04-0518 WQH (JMA) (S.D. Cal. Sep. 26, 2005)