Mitchell v. Allison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN EDWARD MITCHELL, Case No.: 3:21-cv-00935-WQH-NLS CDCR #H-38255, 12 ORDER: Plaintiff, 13 vs. 1) SCREENING COMPLAINT 14 PURSUANT TO 28 U.S.C. § 1915A KATHLEEN ALLISON; Director of 15 Adult Institutions (CDCR); CHARLES AND 16 RICHEY, Community Resource Manager (CRM) of Religious Programs; DAVID 17 2) GRANTING REQUEST FOR SKAGGS, Community Resource Manager SUMMONS AND WAIVER OF 18 (CRM) of Religious Programs; R. SERVICE FORMS PURSUANT BROWN, Community Resource Manager 19 TO Fed. R. Civ. P. 4(b), (d)(1) (CRM) of Religious Programs for RJDCF; 20 LAURIE MAURINO, Food Administrator [ECF No. 15] for Food/Nutrition (CDCR); L. 21 ESHELMAN, Asst. Food Manager at RJD 22 (CDCR); F. HADJADJ, Jewish Chaplain, 23 Defendants. 24 HAYES, Judge: 25 I. Procedural History 26 Plaintiff John Edward Mitchell, currently incarcerated at California State Prison, 27 Sacramento, in Represa, California, is proceeding pro se in this civil action filed pursuant 28 to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Mitchell is Muslim and alleges California 1 Department of Corrections and Rehabilitation (“CDCR”) and prison officials at Richard J. 2 Donovan Correctional Facility (“RJDCF”) in San Diego violated his First and Fourteenth 3 Amendment rights in 2017 while he was incarcerated there by discontinuing and failing to 4 honor his request for a religious diet during Ramadan. See Compl. at 4‒11. Mitchell claims 5 he sought and exhausted all administrative remedies available to him prior to filing suit, 6 seeks reimbursement of costs and $50,000 in damages from each Defendant, and demands 7 a jury trial. Id. at 12, 13. 8 Mitchell paid the $402 filing fee required by 28 U.S.C. § 1914(a) to commence a 9 civil action on August 26, 2021. See ECF No. 13, Receipt No. CAS132166. Therefore, 10 unlike most pro se prisoner litigants, Mitchell does not seek leave to proceed in forma 11 pauperis (“IFP”) in this action pursuant to 28 U.S.C. § 1915(a).1 He has, however, filed a 12 Request for Waiver of Service Forms pursuant to Fed. R. Civ. P. 4(d)(1). See ECF No. 15. 13 II. Screening of Complaint pursuant to 28 U.S.C. § 1915A 14 As a preliminary matter, the Court has conducted an initial review of Plaintiff’s 15 Complaint pursuant to 28 U.S.C. § 1915A, because he is a prisoner and seeks “redress from 16 a governmental entity or officer or employee of a governmental entity.” See 28 U.S.C. 17 § 1915A(a). Section 1915A “mandates early review—‘before docketing [] or [] as soon as 18 practicable after docketing’—for all complaints ‘in which a prisoner seeks redress from a 19 governmental entity or officer or employee of a governmental entity.’” Chavez v. Robinson, 20 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of § 1915A 21 apply to all prisoners, no matter their fee status, who bring suit against a governmental 22 23 1 Mitchell is no longer entitled to proceed IFP because he has had, while incarcerated, more 24 than three civil actions or appeals dismissed as frivolous, malicious, or for failing to state 25 a claim. See 28 U.S.C. § 1915(g); Mitchell v. Allison, et al., Civil Case No. 3:21-cv-00138- TWR-LL (S.D. Cal. March 18, 2021) (ECF No. 4); Bias v. Moynihan, 508 F.3d 1212, 1225 26 (9th Cir. 2007) (district court “‘may take notice of proceedings in other courts, both within 27 and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 28 1 entity, officer, or employee. See, e.g. Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2 2000). “On review, the court shall … dismiss the complaint, or any portion of the 3 complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may 4 be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 5 Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 6 U.S.C. § 1915A(b)). 7 The Court finds Plaintiff’s Complaint contains First Amendment free exercise and 8 Fourteenth Amendment equal protection allegations sufficient to survive the “low 9 threshold” set for sua sponte screening. See 28 U.S.C. § 1915A(b); Wilhelm v. Rotman, 10 680 F.3d 1113, 1121, 1123 (9th Cir. 2012) (noting that screening pursuant to § 1915A 11 “incorporates the familiar standard applied in the context of failure to state a claim under 12 Federal Rule of Civil Procedure 12(b)(6)”); Hartmann v. Cal. Dept. of Corr. and Rehab., 13 707 F.3d 1114, 1122‒25 (9th Cir. 2013) (setting out pleading requirements for prisoner’s 14 First Amendment free exercise of religion and Fourteenth Amendment equal protection 15 claims); Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (to implicate the Free Exercise 16 Clause, a prisoner must allege that the belief at issue is both “sincerely held” and “rooted 17 in religious belief.”); Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008) (noting that 18 the “sincerity test,” not the “centrality test,” applies to a free exercise analysis); see also 19 Sprouse v. Ryan, 346 F. Supp. 3d 1347 (D. Ariz. 2017) (“With respect to religious diets, 20 prisoners ‘have the right to be provided with food sufficient to sustain them in good health 21 that satisfies the dietary laws of their religion.’”) (quoting McElyea v. Babbitt, 833 F.2d 22 196, 198 (9th Cir. 1987)). 23 III. Request for Waiver of Service Forms 24 In addition, Mitchell has filed a request for waiver of service forms pursuant to Fed. 25 R. Civ. P. 4(d)(1) (ECF No. 15). Absent a specific request and court order that the U.S. 26 Marshal effect service on their behalf pursuant to Fed. R. Civ. P. 4(c)(3), persons who 27 prepay civil filing fees “remain[] responsible for timely service.” See Boudette v. Barnette, 28 923 F.2d 754, 757 (9th Cir. 1991) (Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 1 97, 104 (1987) (“Before a . . . court may exercise personal jurisdiction over a defendant, 2 the procedural requirement of service of summons must be satisfied.”). 3 III. Conclusion and Order 4 Because Mitchell is not entitled to U.S. Marshal service pursuant to 28 U.S.C. 5 § 1915(d), and he remains “responsible for having the summons and complaint served” 6 now that his pleading has survived the sua sponte screening required by 28 U.S.C. § 1915A, 7 the Court GRANTS his request for waiver of service forms (ECF No. 15) pursuant to Fed. 8 R. Civ. P. 4(c)(1) and (d)(1). 9 The Court further DIRECTS the Clerk of the Court to issue a summons upon 10 Defendants Allison, Richey, Skaggs, Brown, Maurino, Eshelman, and Hadjadj pursuant to 11 Fed. R. Civ. P. 4(b), and to provide Mitchell with a conformed copy of his Complaint (ECF 12 No. 1) and fourteen (14) Waiver of Service of Summons Forms so that he may execute 13 service of his Complaint by notifying Defendants that an action has been commenced 14 against them and by requesting that each Defendant waive personal service pursuant to 15 Fed. R. Civ. P. 4(d)(1).2 16 Mitchell must properly execute service upon each Defendant within 90 days of this 17 Order3 either by filing with the Clerk of the Court an executed waiver on behalf of each 18 19 2 Because Mitchell is incarcerated, the Court presumes he is unable to access the Waiver 20 of Service of Summons (AO 399) Forms he requests directly from the Court’s website. See 21 https://www.casd.uscourts.gov/_assets/pdf/forms/Waiver%20of%20Service%20of%20Su mmons.pdf. Pursuant to Fed. R. Civ. P. 4(d)(1), Mitchell must provide by “first-class mail 22 or other reliable means,” a copy of his Complaint, two (2) copies of the waiver forms 23 provided, and a prepaid means for returning the waiver form to each Defendant. See Fed. R. Civ. P. 4(d)(1). 24 25 3 The Court tolls Rule 4(m)’s service clock while it conducts its mandatory screening duties pursuant to 28 U.S.C. § 1915A. See Butler v. Nat’l Cmty. Renaissance of California, 766 26 F.3d 1191, 1204 n.8 (9th Cir. 2014) (noting that “[o]ther federal circuit courts of appeals 27 have held that the [90]–day service period is tolled until the court screens a plaintiff’s in forma pauperis complaint and authorizes service of process”) (citing Robinson v. Clipse, 28 1 ||named Defendant, or by filing proof of personal service of both the Complaint and 2 ||summons upon each Defendant pursuant to Fed. R. Civ. P. 4(/) should that Defendant fail 3 || to sign and return the waiver he requests. 4 Should Mitchell fail to properly execute service within 90 days, the Court will order 5 ||him to show cause why his case should not be dismissed without prejudice based on his 6 || failure to prosecute pursuant to Fed. R. Civ. P. 4(m).4 7 IT IS SO ORDERED. 8 || Dated: September 30, 2021 BE: ie 2 Ma 9 Hon, William Q. Hayes 10 United States District Court 11 12 13 14 || 16 459 (3d Cir. 1996)); see also Much y. Langston, No. CV 16-0863 VAP (SS), 2018 WL 17 ||5905827, at *7 (C.D. Cal. Oct. 23, 2018) (“In cases where a court is required to screen a 18 complaint before it may be served, it is generally accepted that the service deadline prescribed by Rule 4(m) does not begin to run until the date the court authorizes service of 19 complaint.”), report and recommendation adopted, No. CV 16-0863 VAP (SS), 2018 30 WL 5906044 (C.D. Cal. Nov. 9, 2018). 21 ||* Should Defendants fail, without good cause, to sign and return the waivers Mitchell 99 requests, they will be responsible for the costs he later incurs in making personal service, and regardless of whether they ultimately prevail. See Fed. R. Civ. P. 4(d)(2); Est. of 23 || Darulis v. Garate, 401 F.3d 1060, 1064 (9th Cir. 2005). Should Defendants timely waive 54 service, however, they need not serve an answer to Mitchell’s Complaint until 60 days after the request was sent. See Fed. R. Civ. P. 4(d)(3); 42 U.S.C. § 1997e(g)(2) (while defendants 25 ||may occasionally be permitted to “waive the right to reply to any action brought by a 5 prisoner confined in any jail, prison, or other correctional facility under section 1983,” once © the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915A(b), and 27 ||thus, has made a preliminary determination based on the face on the pleading alone that 28 the plaintiff has a “reasonable opportunity to prevail on the merits,” defendants are required to respond).