(PC) Norsworthy v. Felix ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHELLE-LAEL B. NORSWORTHY, Case No.: 1:23-cv-01151-NODJ-SKO 12 Plaintiff, ORDER STRIKING ORDER SETTING MANDATORY SETTLEMENT 13 v. CONFERENCE 14 OFFICER FELIX, et al., (Doc. 3) 15 Defendants. ORDER VACATING INITIAL SCHEDULING CONFERENCE SET FOR 16 SEPTEMBER 19, 2024 17 ORDER DENYING MOTION TO DISMISS AS PREMATURE AND WITHOUT 18 PREJUDICE 19 (Doc. 7) 20 21 Plaintiff Michelle-Lael B. Norsworthy, a former inmate at the Central California 22 Women’s Facility in Chowchilla, is represented by counsel in this civil rights action pursuant to 23 42 U.S.C. § 1983. 24 I. PROCEDURAL HISTORY 25 Plaintiff filed a complaint on August 2, 2023. (Doc. 1.) Summonses and new civil case 26 documents issued the following day. (Docs. 2 & 3.) 27 On August 30, 2023, the summonses were returned executed as to all named Defendants. 1 On September 18, 2023, the parties filed a Stipulation and Order to Continue Responsive 2 Pleading Deadline and Continuing Scheduling Conference. (Doc. 6.) 3 Defendants filed a Motion to Dismiss Plaintiff’s Complaint on October 31, 2023. (Doc. 4 7.) On November 1, 2023, then assigned District Judge Ana de Alba issued a minute order 5 indicating the motion to dismiss would be decided on the papers without a hearing, citing Local 6 Rule 230(g). (Doc. 8.) 7 The parties filed a Joint Stipulation and Proposed Order to Request Amendment to 8 Briefing Schedule on November 13, 2023. (Doc. 9.) 9 On November 15, 2023, the Court issued its Order Directing Clerk’s Office to 10 Redesignate Action From 440 (Other Civil Rights) to 550 (Civil Rights). (Doc. 11.) That same 11 date, the Court granted the parties’ joint stipulation. (Doc. 12.) 12 In a minute order of November 27, 2023, the Initial Scheduling Conference set for 13 December 21, 2023, was continued to September 19, 2024. (Doc. 14.) 14 On November 28, 2023, Plaintiff filed an opposition to the motion to dismiss. (Doc. 15.) 15 On December 1, 2023, Chief Judge Kimberly J. Mueller issued the Order of Temporary 16 Reassignment to No District Court Judge (NODJ). (Doc. 16.) 17 II. DISCUSSION 18 As an initial matter, in light of the redesignation of this action from a 440 (Other Civil 19 Rights) action to a 550 (Prisoner Civil Rights) action, the Court will strike the Order Setting 20 Mandatory Scheduling Conference issued August 3, 2023 (Doc. 3) and vacate the Initial 21 Scheduling Conference set for September 19, 2024. The Court will issue new case documents for 22 this prisoner civil rights action—rather than those issued for a regular civil action—separately. 23 Second, this Court finds Defendants’ motion to dismiss to be premature. While 24 summonses were executed and a responsive pleading required when this case was filed, the 25 complaint in this action is subject to screening pursuant to 18 U.S.C. § 1915. Whether Plaintiff is 26 represented by counsel is not relevant for this purpose because “[t]he court is required to screen 27 complaints brought by prisoners seeking relief against a governmental entity or officer or 1 Parks v. Rolfing, No. 2:15-cv-1505-CKD-P, 2018 WL 2128393, at *2 (E.D. Cal. May 9, 2018); 2 Rios v. Dragon, No. 2:20-cv-00146-ADA-HBK (PC), 2022 WL 11324595, at *1, 3 (E.D. Cal. 3 Oct. 19, 2022) (citing Parks v. Rohlfing and denying motion to dismiss as premature because 4 court has not yet screened complaint); Munoz v. California Department of Corrections, No. 1:16- 5 CV-01103-LJO-MJS, 2016 WL 6298533, at *1 (E.D. Cal. Oct. 27, 2016) (screening former state 6 prisoner’s complaint who is represented by counsel in § 1983 action).; see also Medina v. 7 Kernan, No. 1:19-cv-00345-DAD-JLT, 2021 WL 5179899, at *2 (E.D. Cal. Nov. 8, 2021); Rojas 8 v. Brown, No. 1:17-cv-01514-DAD-JLT, 2021 WL 4811180, at *1 (E.D. Cal. Oct. 15, 2021); 9 Johnson v. Hall, No. 2:19-cv-1752-KJN-P, 2019 WL 4392413, at *1 (E.D. Cal. Sept. 13, 2019). 10 Although at least one judge of this district has found the screening of complaints to be optional 11 when plaintiffs are proceeding with counsel (see Simmonds v. CDCR, 49 F.Supp.3d 700, 701 12 (E.D. Cal. 2014)), this Court is unaware of a decision barring the screening of a represented 13 prisoner's complaint. 14 To the extent service of a complaint is typically ordered following screening in a prisoner 15 civil rights action and where the Court has found a cognizable claim or claims have been 16 plausibly alleged, service of process is unnecessary because the Defendants have already 17 appeared. Once the Court has screened the complaint and if it finds a cognizable claim or claims, 18 the Court will issue an order, either separately or concurrently with its screening order, directing 19 Defendants to file a responsive pleading. 20 In sum, Defendants’ motion to dismiss is premature because the Court has not yet 21 screened the complaint in this former prisoner’s civil rights action. The motion to dismiss will be 22 denied, without prejudice as premature. The Court will screen Plaintiff’s complaint, in accordance 23 with 28 U.S.C. § 1915A(a), in due course. And, as noted above, the Court will separately issue 24 new case documents specific to prisoner civil rights cases. 25 III. CONCLUSION AND ORDER 26 For the reasons stated above, IT IS HEREBY ORDERED that: 27 1. The Order Setting Mandatory Scheduling Conference issued August 3, 2023 (Doc. 3) 1 2. The Initial Scheduling Conference set for September 19, 2024, at 9:30 a.m., is 2 VACATED; 3 3. The Court will issue new case documents for this prisoner civil rights action 4 separately; 5 4. Defendants’ Motion to Dismiss filed October 31, 2023 (Doc. 7) is DENIED, without 6 prejudice, as premature; and 7 5. The Court will screen Plaintiff’s complaint (Doc. 1) filed August 2, 2023, in due 8 course and pursuant to 28 U.S.C. § 1915A(a). 9 IT IS SO ORDERED. 10 11 Dated: December 8, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27