Richard v. Galbraith ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CRAIG RICHARD, Case No.: 3:19-CV-1110-LAB-AHG CDCR #J-36916, 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 “REQUESTING THE vs. CANCELLATION OF SECOND 14 AMENDED COMPLAINT”; (2) 15 DIRECTING CLERK OF COURT TO C/O GALBRAITH; C/O SORENSEN; FILE PROPOSED THIRD 16 C/O KAHN; C/O NORIEGA, AMENDED COMPLAINT; AND 17 Defendants. (3) GRANTING MOTION FOR USMS SERVICE AND DIRECTING 18 USMS TO EFFECT SERVICE OF 19 THIRD AMENDED COMPLAINT 20 21 22 23 24 I. Procedural History 25 On June 13, 2019, Craig Richard (“Plaintiff”), currently incarcerated at the 26 California Health Care Facility (“CHCF”) located in Stockton, California, and proceeding 27 pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). While 28 Plaintiff was housed at CHCF at the time he filed this action, the named Defendants are 1 prison officials at the Richard J. Donovan Correctional Facility (“RJD”). (See Compl. at 2 1-2.) In addition, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 3 U.S.C. § 1915(a) (ECF No. 3). 4 On July 8, 2019, the Court denied Plaintiff’s Motion to Proceed IFP and dismissed 5 his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A. (ECF No. 4.) 6 Plaintiff was granted thirty (30) days leave to pay the entire initial civil filing fee, along 7 with filing an amended complaint. (Id.) 8 On August 20, 2019, Plaintiff filed a “Motion Requesting Filing Fee Readjustment 9 and/or Reconsideration of IFP status.” (ECF No. 10.) However, Plaintiff then filed a 10 “Motion Requesting the Court to withdraw Plaintiff’s previous request to readjust 11 Plaintiff’s Filing Fee Order and/or Reconsider Plaintiff’s IFP status.” (ECF No. 12.) 12 Plaintiff also filed a First Amended Complaint (“FAC”), along with a Motion to Appoint 13 Counsel. (ECF Nos. 13, .) 14 The Court granted Plaintiff’s motion to withdraw the motion for reconsideration but 15 dismissed the action based on Plaintiff’s failure to pay the initial partial filing fee in the 16 time previously determined by the Court. (ECF No. 17.) A judgment was entered as to 17 the entire action in favor of all the named Defendants. (ECF No. 18.) 18 On December 3, 2019, Plaintiff filed a “Motion requesting the Court to withdraw 19 the Order dismissing Plaintiff’s civil action” which the Court liberally construed as a 20 motion for reconsideration of the Court’s November 18, 2019 Order. (ECF No. 20.) In 21 addition, Plaintiff also filed a letter to the Court on December 17, 2019 to provide 22 documentation in support of his Motion. (ECF No. 22.) 23 On December 19, 2019, the Court granted Plaintiff’s Motion for Reconsideration, 24 vacated the November 18, 2019 Order and dismissed his FAC for failing to state a claim 25 upon which relief could be granted. (ECF No. 24.) 26 On December 23, 2019, Plaintiff filed his Second Amended Complaint (“SAC”). 27 (ECF No. 25.) However, on December 31, 2019, Plaintiff filed a Motion seeking to 28 withdraw his SAC and instead filed a proposed Third Amended Complaint (“TAC”). (ECF 1 No. 27.) Plaintiff’s Motion is GRANTED and the Court will direct the Clerk of Court to 2 file Plaintiff’s proposed amended pleading, see ECF No. 27 at 6-26, as his TAC. 3 II. Screening of Complaint pursuant to 28 U.S.C. § 1915A 4 As the Court previously informed Plaintiff, the Court is required to conduct a sua 5 sponte review of Plaintiff’s TAC because he was “incarcerated or detained in any facility 6 [and] is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law 7 or the terms or conditions of parole, probation, pretrial release, or diversionary program” 8 at the time he filed this action. See 28 U.S.C. § 1915A(a), (c). 9 Section 1915A, also enacted as part of PLRA, requires sua sponte dismissal of 10 prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state 11 a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Coleman v. Tollefson, 12 135 S. Ct. 1759, 1764 (2015); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). 13 “The purpose of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need 14 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 15 2014) (citations omitted.) 16 As currently pleaded, the Court finds Plaintiff’s TAC contains “sufficient factual 17 matter, accepted as true,” to state Eighth Amendment claims for relief that are “plausible 18 on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to survive the “low threshold” 19 set for sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See 20 Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 104 21 (1976) (prison officials’ deliberate indifference to an inmate’s serious medical needs 22 constitutes cruel and unusual punishment in violation of the Eighth Amendment).1 23 / / / 24 25 26 1 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is 27 cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. 28 1 III. Plaintiff’s Motion for Court-Ordered Marshal Service [ECF No. 7] 2 Because plaintiffs who prepay the civil filing fee are not considered to proceed IFP, 3 they are not automatically entitled to have the U.S. Marshal effect service on their behalf, 4 and they must do so within the 120 days provided by FED.R.CIV.P. 4 (m). Boudette v. 5 Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (absent a specific request and court order that 6 the U.S. Marshal effect service on their behalf pursuant to FED.R.CIV.P. 4(c)(2), persons 7 who prepay civil filing fees “remain[] responsible for timely service”); 4A WRIGHT & 8 MILLER, FEDERAL PRACTICE & PROCEDURE §§ 1090, 1094 (3d ed. 2002). 9 Plaintiff previously filed a Motion requesting that the U.S. Marshal effect service of 10 his Complaint pursuant to FED.R.CIV.P. 4(c)(2) and 28 U.S.C. § 1915(d) which the Court 11 previously denied without prejudice because he did not have an operative pleading at the 12 time Plaintiff filed this Motion. However, now that the Court has determined that 13 Plaintiff’s TAC survives the sua sponte screening process, the Court will construe 14 Plaintiff’s Motion, see ECF No. 7, as a Motion to Proceed IFP for purposes of service only. 15 FED.R.CIV.P. 4(c)(2) provides that “[a]t the request of the plaintiff . . . the court may 16 direct that service be effected by a United States marshal, deputy United States marshal, or 17 other person or officer specially appointed by the court for that purpose.” FED.R.CIV.P. 18 4(c)(2). In addition, as noted above, when plaintiffs are granted leave to proceed IFP, the 19 United States Marshal, upon order of the court, is authorized to serve the summons and 20 complaint on the pauper’s behalf. See 28 U.S.C. § 1915(d); Boudette, 923 F.2d at 757; 21 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1993). 22 Although Plaintiff has paid the $400 civil filing and administrative fee, he may still 23 be eligible to proceed IFP. A request to proceed IFP need not be filed at any particular 24 time, but may be initiated at any stage of a proceeding, since a person who is not an indigent 25 at the commencement of a suit may become one during or prior to its prosecution. See 26 Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (“IFP status may be 27 acquired or lost throughout the course of the litigation”), aff’d in pertinent part sub. nom, 28 Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). 1 The Court now finds that Plaintiff’s Motion for U.S. Marshal Service is sufficient to 2 show that he, since the payment of filing fees and commencement of this action, has 3 become unable to execute the service of his own Summons and TAC. Accordingly, and in 4 order to aid in the timely administration of justice in this matter, he will now be permitted 5 to proceed IFP pursuant to FED.R.CIV.P. 4(c)(2) for purposes of service only. 6 Therefore, the Court will direct the U.S. Marshal to effect service of summons and 7 Plaintiff’s TAC on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 8 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) 9 (“[T]he court may order that service be made by a United States marshal or deputy marshal 10 ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 11 IV. Conclusion and Orders 12 For the reasons discussed, the Court: 13 1) GRANTS Plaintiff’s “Requesting the Cancellation of Second Amended 14 Complaint” [ECF No. 27]; 15 2) DIRECTING Clerk of Court to file proposed Third Amended Complaint, see 16 ECF No. 27 at 6-26, as Plaintiff’s Third Amended Complaint; 17 3) GRANTS Plaintiff’s Motion to Proceed IFP for purposes of service only 18 [ECF No. 7]; 19 4) GRANTS Plaintiff’s Motion for U.S. Marshal Service pursuant to 20 FED.R.CIV.P. 4(c)(2) and 28 U.S.C. § 1915(d) [ECF No. 7]; 21 5) DIRECTS the Clerk to issue a summons as to Plaintiff’s TAC (ECF No. 28) 22 and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. 23 In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified 24 copy of his TAC, and the summons so that he may serve the Defendants. Upon receipt of 25 this “IFP Package,” Plaintiff must complete the Form 285 as completely and accurately as 26 possible, include an address where the Defendants may be served, see S.D. Cal. CivLR 27 4.1.c, and return it to the United States Marshal according to the instructions the Clerk 28 provides in the letter accompanying his IFP package; 1 6) | ORDERS the U.S. Marshal to serve a copy of the TAC and summons upon 2 ||the Defendants as directed by Plaintiff on the USM Form 285 provided to him. All costs 3 || of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. 4 ||P. 4(c)(3); 5 7) (ORDERS the Defendants, once served, to reply to Plaintiff's TAC within the 6 || time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 7 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the 8 to reply to any action brought by a prisoner confined in any jail, prison, or other 9 correctional facility under section 1983,” once the Court has conducted its sua sponte 10 ||screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 11 |/preliminary determination based on the face on the pleading alone that Plaintiff has a 12 || “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 13 8) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 14 ||serve upon the Defendants, or, if appearance has been entered by counsel, upon 15 ||Defendants’ counsel, a copy of every further pleading, motion, or other document 16 ||submitted for the Court’s consideration pursuant to FED. R. Civ. P. 5(b). Plaintiff must 17 |}include with every original document he seeks to file with the Clerk of the Court, a 18 || certificate stating the manner in which a true and correct copy of that document has been 19 || was served on the Defendants or their counsel, and the date of that service. See S.D. CAL. 20 |/CIVLR 5.2. Any document received by the Court which has not been properly filed with 21 Clerk, or which fails to include a Certificate of Service upon the Defendants, may be 22 || disregarded. 23 IT IS SO ORDERED. 24 25 || Dated: January 14, 2020 (sm / A (4, yay 26 Hon. LARRY ALAN BURNS, CHIEF JUDGE 17 United States District Court 28 6 ee