Jones v. Baldonado ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Edward Lee Jones, Sr., No. CV-20-01371-PHX-MTL (JZB) 10 Plaintiff, ORDER 11 v. 12 Unknown Baldinado, et al., 13 Defendants. 14 15 16 Pending before the Court is Plaintiff’s Amended Motion to Amend Complaint. 17 (Doc. 41.) The Court will grant the Motion and screen Plaintiff’s proposed First Amended 18 Complaint (lodged at doc. 42-1). 19 I. Background. 20 On July 9, 2020, Plaintiff initiated this action by filing a prisoner civil rights 21 complaint (Complaint). (Doc. 1.) On September 16, 2020, the Court screened Plaintiff’s 22 Complaint and directed Defendants Baldinado, Ridnour, and Leifson to answer the claims 23 against them therein. (Doc. 6.) On December 15, 2020, Defendants answered the 24 Complaint. (Docs. 11, 13.) 25 On January 12, 2021, the Court issued a scheduling order setting the following 26 deadlines: deadline to amend pleadings or complaint – April 12, 2021; fact discovery 27 deadline – June 11, 2021; and dispositive motion deadline – September 9, 2021. (Doc. 14.) 28 The Court warned the parties that “the deadlines are firm” and “the Court will enforce the 1 deadlines set forth in this Order; the parties should plan their litigation activities 2 accordingly.” (Id. at 3.) 3 II. Motion and Amended Motion to Amend Complaint. 4 On April 15, 2021, Plaintiff filed his Motion to Amend his Complaint. (Doc. 32.) 5 Therein, Plaintiff acknowledges that his Motion is untimely. (Id. at 2 (“On January 12, 6 2021, the Court issued a Scheduling Order, therein setting the deadline for joining parties 7 and amending pleadings out until April 12, 2021, which has recently passed 24 hours 8 ago.”).) Plaintiff informs the Court that he “did not complete his draft of his First Amended 9 Complaint until April 10, 2021, and was unable to file it on April 12, 2021, because the 10 librarian only arrives on Wednesdays, which is April 14, 2021” and “[t]his is the only day 11 Plaintiff has access to the Unit Library/E-Filing system.” (Id. at 2-3.) Plaintiff also asks the 12 Court to “allow him to exceed the page limit by 9 pages.” (Id. at 3.) 13 On April 21, 2021, Defendants filed a Response to Plaintiff’s Motion to Amend. 14 (Docs. 36, 37.) Therein, Defendants contend that Plaintiff’s Motion should be denied as 15 untimely and for failure to comply with LRCiv 15.1. (Doc. 36.) 16 On May 13, 2021, Plaintiff filed an Amended Motion to Amend. (Doc. 41.) Plaintiff 17 concurrently filed a new proposed First Amended Complaint (lodged at doc. 42), that he 18 asserts is compliant with LRCiv 15.1. (Doc. 41 at 1.) Additionally, Plaintiff asserts that he 19 did intend to seek both an extension of time and leave to exceed the page limit in his first 20 Motion to Amend (doc. 32). (Doc. 41 at 3.) 21 The Court will construe Plaintiff’s explanation of his delay as a request for the Court 22 to accept his untimely filing, and the Court will grant Plaintiff’s request. Plaintiff missed 23 the deadline by mere days, and to review his filing would result in no prejudice to 24 Defendants. The Court will also grant Plaintiff’s Motion to Exceed the Page limit (doc. 41) 25 and will screen Plaintiff’s proposed First Amended Complaint (FAC) pursuant to 28 U.S.C. 26 § 1915A(a). 27 III. Screening of Prisoner Complaint. 28 The Court is required to screen complaints brought by prisoners seeking relief 1 against a governmental entity or an officer or an employee of a governmental entity. 28 2 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has 3 raised claims that are legally frivolous or malicious, that fail to state a claim upon which 4 relief may be granted, or that seek monetary relief from a defendant who is immune from 5 such relief. 28 U.S.C. § 1915A(b)(1)-(2). 6 A pleading must contain a “short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 8 not demand detailed factual allegations, “it demands more than an unadorned, the 9 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 10 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 11 statements, do not suffice.” Id. 12 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 14 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 15 that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 17 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 19 allegations may be consistent with a constitutional claim, a court must assess whether there 20 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 21 IV. First Amended Complaint. 22 In his proposed FAC, Plaintiff alleges eight total “Counts” against the following 23 Defendants in their individual and official capacities: Jacey Baldonado, Correctional 24 Officer (CO) II; Sergent Kaleb Ridenour, CO; G. De La Torre #10863, COII; Lieutenant 25 William Ames, CO; Barbara Gallant, RN; Brett Leifson, Medical Provider; J. Olgoin, 26 COII. (Doc. 42-1.)1 Plaintiff seeks monetary damages, payment of his filing fees and 27 1 The Court notes that Plaintiff’s first proposed FAC (lodged at doc. 42), was poorly scanned and largely illegible. (See Doc. 42.) On May 17, 2021, the Clerk’s office secured 28 and attached a corrected proposed FAC, which is legible. (See Doc. 42-1.) The Court will cite to this attachment throughout this Order, and ultimately direct the Clerk to file the 1 attorney’s fees, and injunctive relief in the form of having “cameras placed in clusters of 2 the SMU-1 Unit.” (Id. at 30.) 3 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 4 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. 5 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil 6 rights complaint may not supply essential elements of the claim that were not initially pled. 7 Id. 8 A. Counts One, Two, Three, and Seven. 9 Plaintiff’s allegations in Counts One, Two, Three, and Seven of his proposed FAC 10 are virtually identical to those counts in his original Complaint. (Compare Doc. 1 at 5-10, 11 11-12, 13-15, and 24-26 with Doc. 42-1 at 5-11, 12-13, 14-16, and 26-27.) Accordingly, 12 the Court will adopt its relevant summaries and analysis from its September 16, 2020 13 Screening Order, and direct Defendants Baldinado, Ridnour, and Leifson to answer the 14 relevant claims against them therein. (See Doc. 6 at 3-5, 11, 16-17.) 15 B. Count Four. 16 In Count Four (doc. 42-1 at 17-19), Plaintiff alleges Defendant De La Torre 17 engaged in deliberate indifference to the excessive force committed by Defendant 18 Baldinado in violation of Plaintiff’s Eighth Amendment rights. (Id. at 17.) 19 Specifically, he asserts that on July 23, 2019, Defendant G. De La Torre “was 20 working 2 Baker-Wing Bubble and had given the Plaintiff on two separate occasions that 21 morning permission to leave his pod and address an issue with her at the bubbles trap.” 22 (Id.) During the second conversation, Defendant De La Torre observed Defendant 23 Baldinado approach Plaintiff twice; “the first time in an attempt to initiate an argument 24 with Plaintiff / the second time to initiate a physical altercation with the Plaintiff.” (Id.) 25 Plaintiff alleges that Defendant De La Torre “demonstrated deliberate indifference and 26 became an accessary to the use of excessive force by an officer . . . when she chose not to 27 activate the incident command system or report her co-workers illegal conduct after 28 attachment as Plaintiff’s First Amended Complaint. 1 Defendant Baldinado assaulted the Plaintiff[.]” (Id.) 2 To state an Eighth Amendment conditions-of-confinement claim, plaintiffs must 3 meet a two-part test. “First, the alleged constitutional deprivation must be, objectively, 4 sufficiently serious” such that the “official’s act or omission must result in the denial of the 5 minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 6 (1994) (internal quotations omitted). Second, the prison official must have a “sufficiently 7 culpable state of mind,” i.e., he must act with “deliberate indifference to inmate health or 8 safety.” Id. (internal quotations omitted). Deliberate indifference is a higher standard than 9 negligence or lack of ordinary due care for the prisoner’s safety. Id. at 835. In defining 10 “deliberate indifference” in this context, the Supreme Court has imposed a subjective test: 11 “the official must both be aware of facts from which the inference could be drawn that a 12 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 13 (emphasis added). 14 Liberally construing Plaintiff’s claims, Plaintiff has stated a deliberate indifference 15 claim against Defendant De La Torre in Count Four. 16 C. Count Five. 17 In Count Five (id. at 20-22), Plaintiff alleges Defendant William Aims violated the 18 prohibition against cruel and unusual punishment and denied Plaintiff due process “by 19 issuing [Plaintiff] a false disciplinary infraction[.]” (Id. at 20.) Plaintiff claims that 20 Defendant Aims issued the disciplinary infraction in retaliation against Plaintiff for acting 21 in self-defense and to cover-up Defendant Baldinado’s excessive force, despite Defendant 22 Aims not being present at the time of the incident. (Id. at 20-21.) Plaintiff contends 23 Defendant Aims wrote the disciplinary infraction, despite his failure to witness the 24 incident, because he knew that his subordinates would not second-guess the disciplinary 25 infraction and Plaintiff would be immediately placed in segregated confinement and then 26 placed in maximum custody after the infraction was upheld. (Id. at 21.) 27 Plaintiff alleges Defendant Aims subjected him to “atypical and significant 28 hardships in retaliation to the ordinary incidents of prison life, with no level of due process, 1 because” he was transferred from a close-custody unit – where he was allowed to “spend 2 at least 6 hours out of my cell daily, had ability to take showers every day, access to 3 cleaning materials to sanitize my cell, . . . possess almost just about all my property, obtain 4 a job to support myself, and to go to recreation 3-4 times a week” – to segregated 5 confinement, where he was locked down 24-hours per day with little to no human contact. 6 (Id. at 21-22.) 7 Plaintiff contends he was denied due process in the grievance process because he 8 “did not receive written notice of the false disciplinary infraction until August 22, 2019, 9 despite the incident occurring a month prior” and he “was denied a hearing in seven days 10 [illegible] violation of D.O.#803.06[.]” (Id. at 22.) Plaintiff contends Defendant Aims’s 11 “acts and omissions did not advance a legitimate penological interest or justification” and 12 were “done to conceal criminal conduct of his co-worker [Defendant Baldinado] and cause 13 [Plaintiff] injury.” (Id.) 14 1. Due Process. 15 An inmate “has no constitutionally guaranteed immunity from being falsely or 16 wrongly accused of conduct which may result in the deprivation of a protected liberty 17 interest.” Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); see also Sprouse v. 18 Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (finding inmate’s claims based upon falsity of 19 charges brought by a prison counselor did not state a constitutional claim). 20 Although an inmate has “the right not to be deprived a protected liberty interest 21 without due process of law,” Freeman, 808 F.2d at 951, in analyzing a due process claim, 22 the Court must first decide whether Plaintiff was entitled to any process, and if so, whether 23 he was denied any constitutionally required procedural safeguard. Liberty interests that 24 entitle an inmate to due process are “generally limited to freedom from restraint which, 25 while not exceeding the sentence in such an unexpected manner as to give rise to protection 26 by the Due Process Clause of its own force, nonetheless imposes atypical and significant 27 hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. 28 Conner, 515 U.S. 472, 484 (1995) (internal citations omitted). 1 Even if Plaintiff was entitled to the procedural protections afforded by the Due 2 Process Clause, Plaintiff has failed to allege any facts to support a conclusion that 3 Defendant Aims was involved in the deprivation of due process, either in the placement of 4 Plaintiff in segregated confinement after being charged with the disciplinary infraction, the 5 grievance process, or the disciplinary hearing. To be sure, Plaintiff alleges that his 6 confinement placement was “changed because of Defendant Aims’ deliberate indifference 7 and taking the extra step to make sure the Disciplinary infraction would be upheld by 8 drafting it himself” (doc. 42-1 at 22); but such an allegation falls short of alleging that it 9 was Defendant Aims decision to move Plaintiff’s housing. 10 Moreover, “[p]rison disciplinary proceedings are not part of a criminal prosecution, 11 and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff 12 v. McDonnell, 418 U.S. 539, 556 (1974). Procedural due process safeguards in a prison 13 disciplinary hearing require that the defendant receive: (1) written notice of the charges, no 14 less than twenty-four hours prior to the hearing; (2) a written statement by the fact-finder 15 as to the evidence relied on and reasons for the disciplinary action; and (3) a limited right 16 to call witnesses and present documentary evidence when it would not be unduly hazardous 17 to institutional safety or correctional goals to allow the defendant to do so. Id. at 565-66. 18 Plaintiff does not allege he was denied any of these procedural protections. 19 Thus, the Court will dismiss without prejudice Plaintiff’s due process claim against 20 Defendant Aims. 21 2. Eighth Amendment. 22 To the extent Plaintiff asserts Eighth Amendment allegations related to the 23 conditions in supermax, Plaintiff fails allege any facts suggesting Defendant Aims was 24 responsible for these conditions or disregarded Plaintiff’s complaints about them. 25 Accordingly, the Court will dismiss without prejudice Plaintiff’s Eighth Amendment claim 26 against Defendant Aims. 27 D. Count Six. 28 In Count Six (id. at 23-25), Plaintiff alleges Defendant Barbara Gallant subjected 1 him to deliberate indifference2 regarding his medical care, in violation of the Eighth 2 Amendment. (Id. at 23.) 3 1. Facts. 4 Specifically, Plaintiff claims: 5 On July 23, 2019, Defendant Gallant aided the ASPC-Eyman-SMU Administration in stagging a false claim of staff assault against me by 6 falsifying my medical records when she asserted that I had refused medical treatment at 10:40 am (16 minutes before a I.C.S. or event actually 7 transpired. Conversely, a delayed I.C.S. was activated at 10:56 am following me being attacked having to defend myself thereafter, wrestled to the ground 8 knees placed in my back and on my head before I was kicked in the face. Def. Gallant’s actions/inactions violated DO # 1101 and 120 – Inmate access. 9 10 (Id.) Plaintiff asserts that he “would have never denied or refused treatment.” (Id.) “I was 11 denied medical treatment by the Defendant, which the evidence demonstrates was pre- 12 meditated, thus fraudulent.” (Id.) 13 When I was taken to medical at approximately 11:00 pm, no medical personnel was present to even treat me and never showed up, but to further 14 the cover up of the initial denial of medical care, ADCRR official(s) not only signed as a witness to the asserted falsehood, that I refused medical treatment 15 at 10:40am, ASPC-Eyman-SMU Officials (Sgt. Serrato Reying) convinced Nurse Practitioner Kendra Avant-Ortiz to also falsify documentation 16 asserting I refused medical treatment. 17 (Id. at 23-24.) 18 Plaintiff further asserts that, on July 25, 2019, he submitted a health needs request 19 informing the medical staff that he had pain in shoulder, leg, and face; his anxiety was 20 high; he was having trouble sleeping; and he was constantly on alert. (Id. at 24.) He 21 contends he was placed on the nurses’ line on July 29, 2019. (Id.) Plaintiff alleges that by 22 August 8, 2019, he had not been called to the medical department, so he submitted another 23 health needs request, informing the medical department that he was still having anxiety. 24 (Id.) He claims he did not receive a response, but he was finally seen by the mental health 25 26 2 The Court notes that Plaintiff labels his claim in Count Six as alleging “mal-practice- deliberate-indifference.” (Doc. 42-1 at 23.) However, a claim for medical malpractice is 27 not cognizable under § 1983. See Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or “medical malpractice” do not 28 support a claim under § 1983). Accordingly, the Court will liberally construe Plaintiff’s claim alleging deliberate indifference regarding his medical care. 1 department on August 21, 2019, and was prescribed hydroxyzine and Effexor. (Id.) 2 Plaintiff asserts he filed an August 23, 2019 informal inmate complaint alleging he 3 had been denied medical care, but he received no response, so he submitted a September 4 17, 2020 inmate grievance. (Id. at 25.) Plaintiff alleges he was finally seen by the medical 5 department on September 18, 2019, by which time his injuries had healed. (Id.) At that 6 appointment, he was taken off hydroxyzine and placed on mirtazapine to help with his 7 sleep and anxiety issues. (Id.) 8 2. Deliberate Indifference. 9 Plaintiff alleges that the “acts and omissions of Defendant Barbara Gallant were 10 deliberately done to aid the ADCRR in covering up the assaultive conduct of the SMU 11 officials.” (Id.) “Her conduct . . . is considered mal-practice3,” and “such acts did not 12 advance a legitimate or penological interest and resulted in the infliction of unnecessary 13 pain.” (Id.) 14 Not every claim by a prisoner relating to inadequate medical treatment states a 15 violation of the Eighth Amendment. To state a § 1983 medical claim, a plaintiff must show 16 (1) a “serious medical need” by demonstrating that failure to treat the condition could result 17 in further significant injury or the unnecessary and wanton infliction of pain and (2) the 18 defendant’s response was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th 19 Cir. 2006). 20 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 21 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know 22 of and disregard an excessive risk to inmate health; “the official must both be aware of 23 facts from which the inference could be drawn that a substantial risk of serious harm exists, 24 and he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate indifference in 25 the medical context may be shown by a purposeful act or failure to respond to a prisoner’s 26 pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. 27 Deliberate indifference may also be shown when a prison official intentionally denies, 28 3 See supra n.2. 1 delays, or interferes with medical treatment or by the way prison doctors respond to the 2 prisoner’s medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Jett, 439 F.3d at 3 1096. 4 Deliberate indifference is a higher standard than negligence or lack of ordinary due 5 care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor gross 6 negligence will constitute deliberate indifference.” Clement v. Cal. Dep’t of Corr., 220 F. 7 Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton, 622 F.2d at 460 (mere claims 8 of “indifference,” “negligence,” or “medical malpractice” do not support a claim under § 9 1983). “A difference of opinion does not amount to deliberate indifference to [a plaintiff’s] 10 serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay 11 in medical care, without more, is insufficient to state a claim against prison officials for 12 deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 13 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level 14 of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 15 Liberally construed, Plaintiff’s allegations that Defendant Gallant engaged in a 16 conspiracy and cover up to falsify medical documentation to prevent Plaintiff from 17 receiving medical care are sufficient to state a claim for deliberate indifference in violation 18 of the Eighth Amendment. Defendant Gallant must answer Plaintiff’s claims against her in 19 Count Six of the FAC. 20 E. Count Eight. 21 In Count Eight, Plaintiff alleges Defendant J. Olguin subjected him to deliberate 22 indifference in violation of Plaintiff’s Eighth Amendment right to medical care. (Id. at 29.) 23 Specifically, Plaintiff alleges that on July 23, 2019, Defendant Olguin aided “the ASPC- 24 Eyman-SMU-1 Administration . . . in stagging [sic] a false-claim of staff assault against 25 me by falsely documenting that I refused medical treatment at 10:40 am, in order to cover 26 up the fact that ASPC-Eyman-SMU-1 Official and medical staff intentionally denied me 27 medical care.” (Id.) Plaintiff further alleges that “his actions not only deprived me of 28 medical care, they were [illegible] fraudulently done because at 10:39 am I was in 2 Baker- 1 Cluster pod 2, and no I.C.S. was activated alerting him until 10:56am, when I arrived to 2 medical it was count time and he was in medical.” (Id.) 3 Liberally construed, Plaintiff has stated a claim for deliberate indifference of a 4 serious medical need in violation of the Eighth Amendment against Defendant Olguin. 5 V. Conclusion. 6 The Court will grant Plaintiff’s Motion to Amend. (Doc. 41.) After screening, the 7 Court will order Defendants Baldinado, Ridnour, Leifson, De La Torre, Gallant, and 8 Olguin to answer the claims against them in Plaintiff’s FAC, as described in this Order. 9 The Court will dismiss Defendant Aims and Count Five of Plaintiff’s FAC. 10 Accordingly, 11 IT IS ORDERED: 12 1. Plaintiff’s Motion to Amend (doc. 41) is granted. The Clerk is directed to 13 file Plaintiff’s First Amended Complaint (lodged at doc. 42-1). 14 2. Defendants Baldinado, Ridnour, Leifson, De La Torre, Gallant, and Olguin 15 to answer the claims against them in Plaintiff’s FAC, as described in this Order. 16 3. Plaintiff’s claims in Count Five are dismissed for failure to state a claim. 17 Additionally, Defendant Aims dismissed from this action. 18 4. The Clerk of Court must send Plaintiff a service packet including the First 19 Amended Complaint (doc. 42-1), this Order, and both summons and request for waiver 20 forms for Defendants De La Torre, Gallant, and Olguin. 21 5. Plaintiff must complete4 and return the service packets to the Clerk of Court 22 within 21 days of the date of filing of this Order. The United States Marshal will not provide 23 service of process if Plaintiff fails to comply with this Order. 24 6. If Plaintiff does not either obtain a waiver of service of the summons or 25 complete service of the Summons and Fourth Amended Complaint on a Defendant within 26 90 days of the filing of the Complaint or within 60 days of the filing of this Order, 27 4 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee 28 works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. 1 whichever is later, the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 2 16.2(b)(2)(B)(ii). 3 7. The United States Marshal must retain the Summons, a copy of the First 4 Amended Complaint, and a copy of this Order for future use. 5 8. The United States Marshal must notify Defendants of the commencement of 6 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 7 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 8 Order. The Marshal must immediately file signed waivers of service of the summons. 9 If a waiver of service of summons is returned as undeliverable or is not returned by 10 a Defendant within 30 days from the date the request for waiver was sent by the 11 Marshal, the Marshal must: 12 (a) personally serve copies of the Summons, First Amended Complaint, 13 and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil 14 Procedure; and 15 (b) within 10 days after personal service is effected, file the return of 16 service for Defendant, along with evidence of the attempt to secure a waiver of service of 17 the summons and of the costs subsequently incurred in effecting service upon Defendant. 18 The costs of service must be enumerated on the return of service form (USM-285) and 19 must include the costs incurred by the Marshal for photocopying additional copies of the 20 Summons, Fourth Amended Complaint, or this Order and for preparing new process receipt 21 and return forms (USM-285), if required. Costs of service will be taxed against the 22 personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil 23 Procedure, unless otherwise ordered by the Court. 24 9. If Defendant agrees to waive service of the Summons and Fourth 25 Amended Complaint, he must return the signed waiver forms to the United States 26 Marshal, not the Plaintiff. 27 /// 28 /// 1 10. Defendants must answer the First Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) || of the Federal Rules of Civil Procedure. 4 Dated this 14th day of June, 2021. 5 ° Wichal T. Fburde Michael T. Liburdi 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13-