1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS JEROME MUNFORD, Case No. 21-CV-851 JLS (JLB) CDCR #BE-8370, 12 ORDER: (1) DISMISSING FIRST Plaintiff, 13 AMENDMENT CLAIMS AGAINST vs. DEFENDANTS WITHOUT LEAVE 14 TO AMEND PURSUANT TO 28 J. SANCHEZ, A. LARACCO, T.

(e)(2)(B) AND ARMSTEAD , § 1915A(b)(1); AND (2) DIRECTING 16 Defendants. U.S. MARSHAL TO EFFECT 17 SERVICE OF COMPLAINT AND SUMMONS UPON DEFENDANTS 18 SANCHEZ, LARACCO, AND 19 ARMSTEAD PURSUANT TO

(d) & FED. R. CIV. P. 20 4(c)(3) 21 22 23 On April 30, 2021, Plaintiff Thomas Jerome Munford (“Plaintiff” or “Munford”), 24 currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) and proceeding 25 pro se, filed this civil rights action pursuant to

. (“Compl.,”) ECF No. 1. 26 Plaintiff alleged that three correctional officers violated his First and Eighth Amendment 27 rights. See

at 3–4. Plaintiff did not prepay the $402 civil filing fee required by 28 28 ///

(a) at the time of filing and instead filed a Motion to Proceed In Forma 2 Pauperis (“IFP”) pursuant to

(a). ECF No. 2. 3 On August 23, 2021, the Court granted Munford’s IFP motion, concluded he had 4 stated an Eighth Amendment claim as to the Defendants, but found he had failed to state a 5 First Amendment claim. ECF No. 5. The Court granted Munford forty-five (45) days from 6 the date of the dismissal Order in which to either notify the Court of his intention to proceed 7 with the Eighth Amendment claims only or file an Amended Complaint which cured all 8 the deficiencies the dismissal Order noted.

Munford was also advised that 9 “[d]efendants not named and any claims not re-alleged in the Amended Complaint will be 10 considered waived. Id.; see S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard 11 Feiner & Co., Inc.,

(9th Cir. 1989) (“[A]n amended pleading 12 supersedes the original.”); Lacey v. Maricopa County,

(9th Cir. 2012) 13 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 14 pleading may be “considered waived if not repled”). 15 On September 3, 2021, Munford responded to the Court’s Order by notifying the 16 Court he wished to proceed with his Eighth Amendment claims against the Defendants. 17 See ECF No. 6. Accordingly, Munford’s First Amendment claims against the Defendants 18 are DISIMSSED without leave to amend based on Munford’s failure to state a claim 19 pursuant to

(e)(2)(B) and § 1915A(b)(1). 20 In its initial screening Order, the Court concluded that Munford had stated an Eighth 21 Amendment claim against the Defendants. See ECF No. 5. Accordingly, the Court will 22 order service of the Complaint and summons upon Defendants him pursuant to 28 U.S.C. 23 § 1915(d) & Fed. R. Civ. P. 4(c)(3). 24 For the reasons explained, the Court: 25 1) DISMISSES Plaintiff’s First Amendment claims against the Defendants 26 without leave to amend for failing to state a claim pursuant to

(e)(2) and 27 28 U.S.C. § 1915A(b); 28 /// 1 2) DIRECTS the Clerk to issue a summons as to Munford’s Complaint (ECF 2 No. 1) upon Defendants J. Sanchez, A. Laracco, and T. Armstead and forward them to 3 Munford along with blank U.S. Marshal Form 285 forms. In addition, the Clerk will 4 provide Munford with a certified copy of this Order, a certified copy of his Complaint, and 5 the summons so that he may serve Defendants J. Sanchez, A. Laracco, and T. Armstead. 6 Upon receipt of this “IFP Package,” Munford must complete the USM Form 285 forms as 7 completely and accurately as possible, include an address where the Defendants may be 8 found and/or subject to service pursuant to S.D. Cal. Civ. L.R. 4.1c., and return them to the 9 U.S. Marshal according to the instructions the Clerk provides. 10 4) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 11 upon Defendants J. Sanchez, A. Laracco, and T. Armstead upon receipt and as directed by 12 Munford on the completed USM Form 285 forms, and to promptly file proof of service, or 13 proof of any attempt at service unable to be executed, with the Clerk of Court. See S.D. 14 Cal. Civ. L.R. 5.2. All costs of that service will be advanced by the United States. See 28

(d); Fed. R. Civ. P. 4(c)(3). 16 5) ORDERS J. Sanchez, A. Laracco, and T. Armstead, once served, to reply to 17 Munford’s Complaint within the time provided by the applicable provisions of Federal 18 Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may 19 occasionally be permitted to “waive the right to reply to any action brought by a prisoner 20 confined in any jail, prison, or other correctional facility under section 1983,” once the 21 Court has conducted its sua sponte screening pursuant to

(e)(2) and 22 § 1915A(b), and thus, has made a preliminary determination based on the face on the 23 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” 24 defendant is required to respond). 25 6) ORDERS Munford, after service has been effected by the U.S. Marshal, to 26 serve upon J. Sanchez, A. Laracco, and T. Armstead, or if appearance has been entered by 27 counsel, upon J. Sanchez’s, A. Laracco’s, and T. Armstead’s counsel, a copy of every 28 further pleading, motion, or other document submitted for the Court’s consideration 1 || pursuant to Fed. R. Civ. P. 5(b). Munford must include with every original document he 2 seeks to file with the Clerk of the Court, a certificate stating the manner in which a true and 3 || correct copy of that document was served on J. Sanchez, A. Laracco, and T. Armstead or 4 || their counsel, and the date of that service. See S.D. Cal. Civ. L.R. 5.2. Any document 5 ||received by the Court which has not been properly filed with the Clerk or which fails to 6 ||include a Certificate of service upon J. Sanchez, A. Laracco, and T. Armstead or their 7 || counsel, may be disregarded. 8 IT IS SO ORDERED. 9 ||Dated: September 13, 2021 . tt 10 jen Janis L. Sammartino United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 oe