DeLeon v. California Department of Corrections and Rehabilitation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SANTIAGO JIMMY DELEON, JR., Case No.: 3:20-cv-00791-AJB-BGS CDCR #BI-0827, 12 ORDER Plaintiff, 13 vs. 1) GRANTING PLAINTIFF’S 14 MOTION TO PROCEED IN FORMA CALIFORNIA DEPARTMENT OF 15 PAUPERIS PURSUANT TO 28 U.S.C. CORRECTIONS AND § 1915(a) [ECF No. 2]; 16 REHABILITATION; CALIFORNIA CORRECTIONAL HEALTH 17 2) DISMISSING DEFENDANTS AND SERVICES; JULIO COLON, Cook CLAIMS PURSUANT TO 28 U.S.C. § 18 Supervisor; ERICA GOYAL, Health Care 1915(e)(2)(B) AND 28 U.S.C. § Physician; VICTOR WARDROPE, 19 1915A(b); Supervising Correctional Cook, 20 Defendants. AND 21 3) DIRECTING U.S. MARSHAL TO 22 EFFECT SERVICE UPON 23 DEFENDANTS COLON AND WARDROPE PURSUANT TO 28 24 U.S.C. § 1915(d) AND Fed. R. Civ. P. 25 4(c)(3) 26 Santiago Jimmy DeLeon (“Plaintiff”), an inmate at Richard J. Donovan State 27 Prison (“RJD”) in San Diego, California, filed this civil rights action pursuant to 42 28 1 U.S.C. Section 1983. (See Compl., ECF No. 1.) Plaintiff’s Complaint centers on unsafe 2 working conditions in the prison’s kitchen that Plaintiff alleges contributed to an incident 3 during which his toe was crushed by a metal jack loaded with frozen food. (See id. at 4.) 4 Plaintiff alleges that prison officials were deliberately indifferent to his medical needs 5 following the incident and that he received inadequate medical care. (See id. at 7-8.) 6 Additionally, Plaintiff contends that he was repeatedly retaliated against for using the 7 grievance process to obtain protective equipment, improved working conditions, and 8 medical care, among other things. (See id. at 5-6, 8, 10-11.) 9 Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his 10 Complaint, instead filing a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 11 U.S.C. § 1915(a). (See ECF No. 2.) 12 I. Plaintiff’s Motion to Proceed IFP 13 All parties instituting any civil action, suit or proceeding in a district court of the 14 United States, except an application for writ of habeas corpus, must pay a filing fee of 15 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 16 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 17 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 18 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 19 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 20 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 21 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 22 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does 28 1 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 2 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 3 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 4 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 5 trust account statement, the Court assesses an initial payment of 20% of (a) the average 6 monthly deposits in the account for the past six months, or (b) the average monthly 7 balance in the account for the past six months, whichever is greater, unless the prisoner 8 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 9 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 10 preceding month’s income, in any month in which his account exceeds $10, and forwards 11 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 12 1915(b)(2); Bruce, 136 S. Ct. at 629. 13 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 14 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. 15 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as 16 well as the attached prison certificate verifying his available balances. (See ECF No. 3, at 17 1-4.) These documents show that Plaintiff carried an average monthly balance of 18 $272.86, average monthly deposits to his trust account for the six months preceding the 19 filing of this action of $199.89, and an available balance of $253.78 at the time of filing. 20 (See id. at 1.) 21 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 22 assesses an initial partial filing fee of $54.57 pursuant to 28 U.S.C. Section 1915(b)(1). 23 The Court directs the Secretary of the CDCR, or his designee, to collect this initial filing 24 fee only if sufficient funds are available in Plaintiff’s account at the time this Order is 25 executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 26 prohibited from bringing a civil action or appealing a civil action or criminal judgment 27 for the reason that the prisoner has no assets and no means by which to pay the initial 28 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 1 U.S.C. Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 2 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him 3 when payment is ordered.”). The Court further directs the Secretary of the CDCR, or his 4 designee, to collect the remaining $295.43 balance of the filing fees required by 28 5 U.S.C. Section 1914 and to forward it to the Clerk of the Court pursuant to the 6 installment payment provisions set forth in 28 U.S.C. Section 1915(b)(1). 7 II. Initial Screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A 8 A. Standard of Review 9 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 10 Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 11 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 12 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 13 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 14 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 15 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 16 the targets of frivolous or malicious suits need not bear the expense of responding.’” 17 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 18 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 22 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 23 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 24 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 25 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 27 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 28 While the court “ha[s] an obligation where the petitioner is pro se, particularly in civil 1 rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of 2 any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. 3 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements 4 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 5 F.2d 266, 268 (9th Cir. 1982). 6 “Courts must consider the complaint in its entirety,” including “documents 7 incorporated into the complaint by reference” to be part of the pleading when 8 determining whether the plaintiff has stated a claim upon which relief may be granted. 9 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. 10 Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) 11 (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading 12 for all purposes.”). 13 B. Factual Allegations 14 Plaintiff reported for work in the prison kitchen in the early morning on August 27, 15 2019. (See FAC at 4.) Approximately two weeks earlier, a doctor in the prison, 16 Defendant Erica Goyal, ordered that Plaintiff was not to lift any heavy objects, bend, or 17 squat, and also ordered that Plaintiff wear orthopedic shoes at all times. (See id. at 4, 7.) 18 Although the Complaint is somewhat unclear, Plaintiff appears to allege that Defendant 19 Goyal failed to enter these restrictions into a computer system that tracks prisoner’s 20 medical restrictions. (See id. at 9.) After arriving for work on August 27, Plaintiff gave 21 Defendant Julio Colon, the kitchen supervisor, a form reflecting his medical restrictions. 22 (See id.) Colon told Plaintiff that he “would be giv[ing] no recognition to [Plaintiff’s 23 medical] form because it” was not visible in the computer system. (See id.) When 24 Plaintiff objected to performing work “against medical orders,” Colon threatened to 25 “writ[e] up” Plaintiff. (See id.) 26 Despite Plaintiff’s objections, Defendant Colon ordered Plaintiff to load and 27 unload rolling jacks laden with fifty-pound boxes of frozen food. (See id.) Around 7:00 28 AM, Plaintiff, another inmate, and Defendant Colon finished loading a jack with 300 1 pounds of vegetables. (See id. at 4.) Plaintiff “attempted to pull the jack slowly out of 2 the freezer . . . .” (See id.) Colon, however, “recklessly shoved the load” before Plaintiff 3 could react, and it “crushed [his] soft toe boot breaking [his] toe on impact.” (See id. at 4 5.) Plaintiff alleges that because Colon told him to wait to seek care, he had to sit “in 5 physical anguish mental stress or duress” for several hours before receiving medical care 6 after his injury. (See id. at 10.) This pain was exacerbated by Plaintiff’s foot swelling in 7 the undersized boots he had been issued when he arrived at RJD. (See id. at 10.) The 8 timing and precise context is unclear, but Plaintiff also alleges that Defendant Colon 9 “threat[ened] to carry out harm to [Plaintiff] . . . .” (See id. at 10.) Plaintiff contends that 10 Defendant Colon is liable for “caus[ing] [Plaintiff’s] injury, pain with suffering and 11 mental duress.” (Id. at 5.) Additionally, Plaintiff alleges that the CDCR is liable “for the 12 pain and suffering mental and physical” that resulted from his injury and for the “fail[ure] 13 to ensure a safe environment” by not providing protective equipment, including steel-toed 14 boots “[p]er OSHA standards and regulations . . . .” (See id. 4-5.) 15 After Plaintiff’s injury, Defendant Goyal, who is a doctor, oversaw his treatment. 16 (See id. at 7.) Plaintiff alleges that this treatment was inadequate for several reasons. 17 First, Plaintiff alleges that rather than receive the Tylenol prescribed by Defendant Goyal, 18 he was given Ibuprofen, which he cannot take due to potential complications with his 19 Hepatitis C. (See id. at 7-8.) Second, Plaintiff had to wait two days to be moved from 20 the top tier of the prison to the lower tier, which required him to move up and down stairs 21 several times each day, causing pain and discomfort. (See id. at 8.) Third, Plaintiff 22 alleges that for at least a month he did not receive the orthopedic shoes Defendant Goyal 23 directed that he wear. (See id. at 7.) In addition to these post-injury issues, Plaintiff 24 alleges that Defendant Goyal is liable for “not doing her job correctly” by entering the 25 information regarding Plaintiff’s medical restrictions into the computer system that tracks 26 such restrictions. (See id.) If those restrictions were properly entered, Plaintiff alleges, 27 he would not have been injured. (See id. at 7, 9.) 28 Following these incidents, Plaintiff evidently filed several prison grievances 1 regarding the health care he received, the job(s) he was assigned, and the equipment he 2 was provided for the work he performed. (See id. at 6.) Plaintiff alleges that he has 3 repeatedly been retaliated against for these efforts. (See id.) Specifically, Plaintiff 4 contends he was “twice thrown in Ad-Seg” and denied the ability to attend his wedding. 5 (See id.) Plaintiff also recounts an incident in which “a supposed weapon” was planted in 6 his cell on the same day that one of Plaintiff’s administrative appeals was denied. (See 7 id.) Plaintiff further contends that Defendant “Health Care Corrections has continued to 8 falsify or deflect my complaints” by stating that “no harm was done” to Plaintiff as a 9 result of being given Ibuprofen rather than Tylenol. (See id. at 8.) Finally, Plaintiff 10 describes a somewhat confusing incident in which “Health Care Corrections supplied a 11 false document into the investigation . . . by providing a medical document of a[n] Inmate 12 or Patient Steven Michael Gutierrez who for the reason his injury is documented as ‘not a 13 work related injury.’” (See id. at 8.) This document evidently became a part of the 14 record through the actions of Defendant Victor Wardrope, who Plaintiff states 15 “investigate[d] [Plaintiff’s] 602 appeal . . . against C.D.C.R. and corrections kitchen 16 staff.” (See id. at 11.) Although Plaintiff provided evidence to Defendant Wardrope to 17 support his appeal, Wardrope did not present this evidence. (See id.) Additionally, 18 Wardrope allegedly knew that “Mr. Julio Colon was making threats of violence and harm 19 or retali[a]tory actions upon [Plaintiff]” both because he was told by other inmates and 20 because he heard Colon make similar statements. (See id.) Plaintiff alleges that 21 Wardrope is liable for “conspir[ing] to provide false documentation in deliberate 22 indifference and is also responsible for training his staff inmates and proper P.P.E. and 23 training, creating an unsafe work environment, and due process violation of [Plaintiff’s] 24 602.” (See id.) 25 Plaintiff seeks an injunction preventing Defendants from taking “retali[a]tory 26 actions on [Plaintiff] and that C.D.C.R. provide steel toe boots and proper P.P.E. and 27 proper training in work areas.” (See id. at 13.) Additionally, Plaintiff seeks 28 compensatory and punitive damages. (See id.) The CDCR and California Correctional 1 Health Care Services are sued only in their official capacities, while Defendants Colon, 2 Goyal, and Wardrope are sued in both their individual and official capacities. (See id. at 3 2-3.) 4 C. Analysis 5 As an initial matter Plaintiff’s claims against two entities, the CDCR and 6 California Correctional Health Services, must be dismissed. The CDCR and California 7 Correctional Health Services are not “persons” subject to suit under Section 1983 and are 8 entitled to immunity from suit for monetary damages under the Eleventh Amendment. 9 See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53-54 (1996); Groten v. California, 10 251 F.3d 844, 851 (9th Cir. 2001) (citing Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th 11 Cir. 1993)); see also Dragasits v. California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 12 680947, at *3 (S.D. Cal. Nov. 15, 2016) (“The State of California’s Department of 13 Corrections and Rehabilitation and any state prison, correctional agency, sub-division, or 14 department under its jurisdiction, are not ‘persons’ subject to suit under § 1983.” (citing 15 Groten, 251 F.3d at 851)); Bridgeman v. Education Dep’t, No. 11-cv-0387-JLS-CAB, 16 2011 WL 2532413, at *1 (S.D. Cal. June 24, 2011) (dismissing claims against the 17 “Education Department” and the “Law Library” of RJD because they are not “persons” 18 and are immune from suit under the Eleventh Amendment). Accordingly, Plaintiff’s 19 claims against these Defendants are dismissed sua sponte for failure to state a claim. See 20 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 21 Plaintiff’s claims against Defendant Goyal must also be dismissed. Prison 22 officials’ deliberate indifference to an inmate’s serious medical needs constitutes cruel 23 and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 24 429 U.S. 97, 104 (1976). “Deliberate indifference ‘may appear when prison official 25 deny, delay or intentionally interfere with medical treatment, or it may be shown in the 26 way in which prison physicians provide medical care.’” Colwell v. Bannister, 763 F.3d 27 1060, 1066 (9th Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th 28 Cir. 1988)). “A prison official acts with ‘deliberate indifference . . . only if the [prison 1 official] knows of and disregards an excessive risk to inmate health and safety.’” 2 Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of 3 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro v. 4 Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). “Under this standard, the 5 prison official must not only ‘be aware of facts from which the inference could be drawn 6 that a substantial risk of serious harm exists,’ but that person ‘must also draw the 7 inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “‘Mere 8 negligence in diagnosing or treating a medical condition, without more, does not violate a 9 prisoner’s Eighth Amendment rights.’” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 10 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 11 F.3d 1133, 1136 (9th Cir. 1997) (en banc)) Although it may have been negligent for 12 Defendant Goyal not to enter Plaintiff’s medical restrictions or “DME ‘Disability 13 Medical Equipment’ info” into a computer system, Plaintiff has not alleged facts 14 sufficient to show that these failures rose to the level of deliberate indifference. (See 15 FAC at 7.) Plaintiff’s allegation that he received Ibuprofen after his injury rather than the 16 Tylenol that Defendant Goyal prescribed do not state a claim of deliberate indifference 17 either. Plaintiff does not allege that Defendant Goyal was involved in the distribution of 18 the wrong medication or that she otherwise caused Plaintiff to receive Ibuprofen rather 19 than Tylenol. On the contrary, Plaintiff alleges that Defendant Goyal prescribed the 20 correct medication, which “for some unknown reason was not distributed to me . . . .” 21 (FAC at 7.) The same is true of Plaintiff’s allegations that he did not receive orthopedic 22 shoes prescribed by Defendant Goyal. (See id.) Likewise, Plaintiff does not allege that 23 Defendant Goyal caused or was otherwise responsible for the delay in his transfer from 24 the top tier to a lower tier of the prison. (See id. at 8.) As a result, Plaintiff’s claims 25 against Defendant Goyal are dismissed sua sponte for failure to state a claim. See 28 26 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 27 As currently pleaded, the Court finds that Plaintiff’s Complaint contains “sufficient 28 factual matter, accepted as true,” to state claims against Defendants Colon and Wardrope 1 that are “plausible on [their] face,” Iqbal, 556 U.S. at 678, and, therefore, are sufficient to 2 survive the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. Sections 3 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; see also Estelle, 429 U.S. at 4 104 (prison officials’ deliberate indifference to an inmate’s serious medical needs 5 constitutes cruel and unusual punishment in violation of the Eighth Amendment); 6 Colwell, 763 F.3d at 1066 (“Deliberate indifference ‘may appear when prison official 7 deny, delay or intentionally interfere with medical treatment, or it may be shown in the 8 way in which prison physicians provide medical care.’” (quoting Hutchinson v. United 9 States, 838 F.2d 390, 394 (9th Cir. 1988))); Henry A. v. Willden, 678 F.3d 991, 1001 (9th 10 Cir. 2012) (“[I]gnoring the instructions of a treating physician . . . can amount to 11 deliberate indifference . . . .”); Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 12 (“Prisoners have a First Amendment right to file grievances against prison officials and to 13 be free from retaliation for doing so.”); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 14 Cir. 2006) (“Eighth Amendment is implicated in the prison work context . . . when a 15 prisoner employee alleges that a prison official compelled him to ‘perform physical labor 16 which [was] beyond [his] strength, endanger[ed his life] or health, or cause[d] undue 17 pain.’” (quoting Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per curiam) 18 (alterations in original)); cf. Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (false 19 accusations against a prisoner in retaliation for exercise of constitutional rights may state 20 First Amendment retaliation claim); Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 21 1995) (prison officials were deliberately indifferent when they ordered inmates to work in 22 asbestos-filled attic for 45 hours without protective equipment). Therefore, the Court will 23 order the U.S. Marshal to effect service upon Defendants Colon and Wardrope on 24 Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 25 serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he 26 court may order that service be made by a United States marshal or deputy marshal . . . if 27 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 28 \\\ 1 III. Conclusion and Orders 2 For the reasons discussed, the Court: 3 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2); 4 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 5 Plaintiff’s prison trust account the initial filing fee assessed in this Order, and shall 6 forward the remainder of the $350 filing fee owed by collecting monthly payments from 7 Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding month’s 8 income and forwarding those payments to the Clerk of the Court each time the amount in 9 the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). ALL PAYMENTS 10 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 11 TO THIS ACTION; 12 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 13 Diaz, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 14 942883, Sacramento, California, 94283-0001; 15 4) DISMISSES Plaintiff’s claims against Defendants CDCR, California 16 Correctional Health Services and Goyal in their entirety sua sponte for failure to state a 17 claim upon which relief may be granted pursuant to 28 U.S.C. Sections 1915(e)(2) and 18 1915A(b), and DIRECTS the Clerk to terminate Defendants CDCR, California 19 Correctional Health Services, and Goyal as parties to this action; 20 5) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 21 No. 1) upon Defendants Colon and Wardrope and forward it to Plaintiff along with a 22 blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Clerk will 23 provide Plaintiff with a certified copy of this Order, a certified copy of his Complaint, 24 and the summons so that he may serve the Defendants. Upon receipt of this “IFP 25 Package,” Plaintiff must complete the Form 285 as completely and accurately as possible, 26 include an address where these Defendants may be served, see S.D. Cal. Civ. L.R. 4.1.c, 27 and return it to the United States Marshal according to the instructions the Clerk provides 28 in the letter accompanying his IFP package; 1 6) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 2 upon Defendants Colon and Wardrope as directed by Plaintiff on the USM Form 285 3 provided to him. All costs of that service will be advanced by the United States. See 28 4 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); 5 7) ORDERS Defendants Colon and Wardrope, once served, to reply to 6 Plaintiff’s Complaint within the time provided by the applicable provisions of Federal 7 Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may 8 occasionally be permitted to “waive the right to reply to any action brought by a prisoner 9 confined in any jail, prison, or other correctional facility under section 1983,” once the 10 Court has conducted its sua sponte screening pursuant to 28 U.S.C. Sections 1915(e)(2) 11 and 1915A(b), and thus, has made a preliminary determination based on the face on the 12 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” 13 defendant is required to respond); and 14 8) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 15 serve upon the Defendants, or, if appearance has been entered by counsel, upon 16 Defendants’ counsel, a copy of every further pleading, motion, or other document 17 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 18 include with every original document he seeks to file with the Clerk of the Court, a 19 certificate stating the manner in which a true and correct copy of that document has been 20 was served on the Defendants or their counsel, and the date of that service. See S.D. Cal. 21 Civ. L.R. 5.2. Any document received by the Court which has not been properly filed 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 || with the Clerk, or which fails to include a Certificate of Service upon the Defendants, 2 be disregarded. 3 IT IS SO ORDERED. 4 5 Dated: July 2, 2020 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13