Battensby v. Zhang

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 Case No.: 3:20-cv-0001-BAS-MDD

DAVID BATTENSBY,

12

CDCR # AC-8920, ORDER

13

Plaintiff,

(1) DISMISSING DEFENDANTS

14

v. ROBERTS AND GATES PURSUANT

15 TO 28 U.S.C. § 1915(e)(2) AND 28

RONALD ZHANG; M. SOUSLEY; S.

U.S.C. § 1915A(b);

16 ROBERTS, M.D.; and S. GATES, Chief,

17 Defendants. AND

18

(2) DIRECTING U.S. MARSHAL TO

19 EFFECT SERVICE UPON

DEFENDANTS ZHANG AND

20

SOUSLEY PURSUANT TO 28 U.S.C.

21 § 1915(d) AND FED. R. CIV. P. 4(c)(3)

22

23

24 Plaintiff David Battensby, currently incarcerated at the Richard J. Donovan

25 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a

26 civil rights action pursuant to 42 U.S.C. Section 1983. The Court granted Plaintiff’s

27 Motion to Proceed In Forma Pauperis (“IFP”), but dismissed Plaintiff’s initial Complaint

1 (ECF No. 1) as to three of the four named Defendants, granting Plaintiff the option to

2 proceed with his claims against the remaining Defendant or to file an amended pleading.

3 (See ECF No. 5, at 9.) Plaintiff chose the latter option and filed a First Amended Complaint

4 claiming that Defendants violated his Eighth Amendment rights by discontinuing his

5 morphine prescription and denying his grievance and subsequent appeals. (See First

6 Amended Complaint, “FAC,” ECF No. 6.)1

7 I. Screening Pursuant to 28 U.S.C. Sections 1915(e)(2)(B) 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 F.3d

22 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

23 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

26

1 All citations to the FAC are to the page numbers generated automatically by the Court’s electronic filing

27

system.

1 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

2 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

3 556 U.S. 662, 678 (2009); Wilhelm, 680 F.3d at 1121. While the court “ha[s] an obligation

4 where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings

5 liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d

6 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.

7 1985)), it may not “supply essential elements of claims that were not initially pled.” Ivey

8 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

9 “Courts must consider the complaint in its entirety,” including “documents

10 incorporated into the complaint by reference” to be part of the pleading when determining

11 whether the plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v.

12 Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep’t of Corrs.,

13 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) (“A copy of a

14 written instrument that is an exhibit to a pleading is a part of the pleading for all

15 purposes.”).

16 B. Factual Allegations

17 Plaintiff alleges that following a back surgery in May 2018, he was prescribed two

18 pain medications: morphine and Lyrica. (FAC at 3.) Although Plaintiff was in moderate

19 pain even while taking these medications, his pain was managed sufficiently for him to

20 sleep and eat normally. (Id.) In January 2019, Defendant Dr. Ronald Zhang told Plaintiff

21 that he was discontinuing Plaintiff’s morphine prescription “because (1) there was no

22 morphine detected on [Plaintiff’s] urine test,” and (2) because Plaintiff kept “[b]othering”

23 Zhang about his persistent pain. (Id.)

24 Plaintiff contends that the first reason Zhang cited, the negative test, is untrue. (See

25 id. at 5.) According to Plaintiff, he tested positive for morphine shortly before his

26 prescription was discontinued, yet Zhang stated that another test, which Plaintiff was not

27 allowed to see, was negative. (See id. at 5.) Plaintiff asserts that Zhang lied about the

1 results of this second test “to justify discontinuing a known effective medication.” (Id. at

2 6.) Plaintiff also notes that decisions on his subsequent administrative grievances do not

3 mention any negative test, a fact that Plaintiff argues bolsters his claim that Zhang was

4 untruthful. (See id.) Even if he did test negative, Plaintiff contends that this result has an

5 innocent explanation—either he was tested on a day that he forgot to take a dose or he did

6 not receive a full dose as a result of the way in which medication is distributed in the prison.

7 (See id.) Regardless, Plaintiff alleges that it is improper for a doctor to discontinue a

8 medication as “a ‘disciplinary action’” for testing negative without substituting “another

9 similar[ly] potent pain medication.” (See id.)

10 Plaintiff explains that after Dr. Zhang discontinued the prescription, his pain quickly

11 escalated, consistently reaching 9/10 or 10/10 in intensity. (See id. at 3.) The pain is so

12 severe that Plaintiff does not feel hungry, and when he does eat, he often feels ill. (See id.)

13 Additionally, Plaintiff alleges that the pain interferes with his breathing and prevents him

14 from sleeping, which in turn increases his anxiety and gives him panic attacks and suicidal

15 thoughts. (See id. at 3–4.) As a result, Plaintiff asked to see Dr. Zhang again, and “basically

16 told him that [his] pain is in a level 10 constantly, which [is] intentionally inflicting pain

17 on [him] . . . .” (Id. at 3.) Nevertheless, Zhang refused Plaintiff’s requests to renew his

18 morphine prescription, and allegedly told Plaintiff that he “didn’t care about [Plaintiff’s]

19 pain.” (Id.) Plaintiff alleges that this conduct constituted deliberate indifference to

20 Plaintiff’s medical conditions in violation of the Eighth Amendment. (See id. at 3–5.) As

21 Plaintiff emphasizes, his demand is not necessarily for the reinstatement of his morphine

22 prescription, and he is open “to any type of pain medication Dr[.] Zhang will be willing to

23 give me. All I wanted was for an effective course of treatment.” (See id. at 5.)

24 Dissatisfied with Zhang’s decision, Plaintiff submitted an administrative grievance.

25 (See id. at 7.) As part of the grievance procedure, Plaintiff was interviewed by a nurse,

26 Defendant Sousley. (See id.) Plaintiff told Sousley that he was in serious pain since his

27 morphine prescription was discontinued, explaining that the pain interfered with his sleep

1 and breathing, caused anxiety and panic attacks, and led to suicidal thoughts. (See id.)

2 Sousley allegedly told Plaintiff that “even if [Plaintiff] came in with a broken arm

3 complaining that [the] doctor put [him] on [an] ineffective course of treatment,” Sousley

4 could not reverse the doctor’s treatment decision. (Id.) Although Plaintiff argued that

5 Sousley, as a nurse, could “recommend emergency or urgent intervention to another doctor

6 or someone that can modify [Plaintiff’s] course of treatment,” Sousley refused, instead

7 urging Plaintiff to go back to Dr. Zhang. (See id.) After their conversation, Sousley denied

8 Plaintiff’s grievance. (Id.) Plaintiff contends that Sousley was deliberately indifferent to

9 Plaintiff’s serious medical needs because Sousley: (1) personally observed Plaintiff’s

10 condition during the interview and failed to intervene to address Plaintiff’s medical needs;

11 (2) delayed interviewing Plaintiff regarding the grievance for approximately five weeks

12 after the grievance was filed; and (3) omitted facts from his decision that were discussed

13 at the interview because they would have shown that Dr. Zhang violated Plaintiff’s Eighth

14 Amendment rights. (See id. at 7–8.)

15 After his interview with Sousley, Plaintiff’s grievance was reviewed by a doctor,

16 Defendant Roberts, who Plaintiff alleges is “the medical executive who has experience on

17 medical terms.” (Id. at 10; see also id. at 25 (grievance decision signed “S. Roberts, MD”).)

18 Roberts allegedly reviewed Plaintiff’s medical records and “must [have] seen that [Plaintiff

19 had] been complaining of being in [pain]” since his morphine prescription was

20 discontinued. (See id. at 10.) Nevertheless, Roberts denied Plaintiff’s grievance. (See id.

21 at 23–25.) As with Plaintiff’s claims against Sousley, Plaintiff contends that Roberts

22 violated Plaintiff’s Eighth Amendment rights by failing to promptly address Plaintiff’s

23 grievance and taking more than two months to respond. (See id. at 5.) Additionally,

24 Plaintiff alleges that Roberts was personally involved in his alleged injuries because “when

25 an inmate receives from a doctor a[n] adverse decision that affects [his] daily life [the]

26 inmate has to file [a] grievance,” and that the purpose of such a submission “is for a higher

27 authority th[a]n the doctor [to] review [the] grievance [and] make a[n] intervention such as

1 asking another doctor to address [the inmate’s] complaint and give [him an] adequate

2 course of treatment.” (See id. at 11 (emphasis in original).) Plaintiff argues that “those

3 who receive [and] review facts on grievances and after noticing serious medical conditions

4 or other serious conditions [and] fail to intervene or do something to minimize the serious

5 conditions when they could have, are ‘deliberate[ly] indifferen[t].’” (See id. at 11–12.)

6 Plaintiff’s appeal of Roberts’ decision was reviewed and denied by Defendant Gates.

7 (Id. at 10; see also id. at 16–18 (attaching Gates’ full decision).) Gates is the chief of the

8 “Health Care Correspondence and Appeals Branch” of “California Correctional Health

9 Care Services.” (See id. at 18.) Plaintiff does not allege that Gates is medically trained or

10 had any direct contact with Plaintiff, only that Gates reviews health care appeals and, by

11 reviewing Plaintiff’s medical records, “knew that [his] course of treatment . . . switch[ed]

12 on 1-17-19 [and] became ineffective,” and declined to intervene despite Plaintiff’s “serious

13 medical condition.” (See id. at 10.) This conduct, Plaintiff asserts, is sufficient to allege

14 that Gates was “personally . . . involved” in the alleged violation of Plaintiff’s Eighth

15 Amendment rights. (See id. at 12.)

16 C. Eighth Amendment

17 The Eighth Amendment requires that inmates have “ready access to adequate

18 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate

19 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle

20 v. Gamble, 429 U.S. 97, 104 (1976). Although a “mere ‘difference of medical

21 opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference,’”

22 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (quoting Jackson v. McIntosh, 90

23 F.3d 330, 332 (9th Cir. 1996)), a plaintiff may state a claim for deliberate indifference

24 when, among other things, he or she alleges that a medical decision “was taken not in the

25 exercise of medical judgment, but for non-medical reasons.” See Hardy v. Three Unknown

26 Agents, 690 F. Supp. 2d 1074, 1092 (C.D. Cal. 2010) (citing Jackson, 90 F.3d at 332); see

27 also Egberto v. Nevada Dep’t of Corrs., 678 F. App’x 500, 505 (9th Cir. 2017) (holding

1 qualified immunity unavailable for prison medical personnel where reasonable jury could

2 conclude treatment was denied or delayed for non-medical reasons).

3 As the Court explained in granting Plaintiff’s Motion to Proceed IFP, (see ECF No.

4 5, at 7), Plaintiff’s Eighth Amendment allegations against Defendant Zhang are sufficient

5 to survive the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. Sections

6 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123. “The fact that Plaintiff may

7 have been annoying Defendant Zhang with his complaints of back pain is not a medical

8 reason for discontinuing a prescription, and other courts have found similar allegations

9 sufficient to state a claim.” (ECF No. 5, at 7 (citing Hung v. Sandhir, 295 F. App’x 584,

10 585–86 (4th Cir. 2008) (allegations that medical treatment was delayed due to physician’s

11 annoyance with a prisoner were sufficient to survive a motion to dismiss); Farrow v. West,

12 320 F.3d 1235, 1247 (11th Cir. 2003) (concluding that it was reasonable to infer that

13 medical treatment was delayed because of physician’s statement that he was “sick of being

14 bother[ed] with” the plaintiff’s complaints)).) The First Amended Complaint also contains

15 additional facts rebutting the potential counterargument that there was a valid medical

16 reason for Zhang’s decision, specifically alleging that Zhang’s claim that Plaintiff tested

17 negative for morphine was false, had an innocent explanation, or is otherwise irrelevant.

18 (See FAC at 5–6.) Accordingly, the Court once again concludes that Plaintiff has stated an

19 Eighth Amendment claim against Defendant Zhang. See Resnick v. Hayes, 213 F.3d 443,

20 447 (9th Cir. 2000) (noting the court’s duty to construe pro se prisoner’s pleadings liberally

21 when screening complaints pursuant to 28 U.S.C. Section 1915A).

22 With regard to the remaining Defendants, the Court explained in its previous order

23 that a prison official’s allegedly improper processing of an inmate’s grievances or appeals,

24 without more, cannot serve as a basis for Section 1983 liability. See generally Ramirez v.

25 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate constitutional

26 entitlement to a specific prison grievance procedure”); see also Todd v. Cal. Dep’t of Corrs.

27 & Rehab., 615 F. App’x 415, 415 (9th Cir. 2015) (district court properly dismissed claim

1 based on improper “processing and handling of . . . prison grievances,” since prisoners

2 have no “constitutional entitlement to a specific prison grievance procedure.” (citing

3 Ramirez, 334 F.3d at 860)). Additionally, there is no vicarious liability for civil rights

4 violations, and a Section 1983 plaintiff must allege that each defendant was personally

5 involved in or caused the alleged civil rights violation. See Iqbal, 556 U.S. at 676–77.

6 Because Plaintiff’s initial complaint alleged “only that [Defendants Sousley, Roberts, and

7 Gates] violated his rights in reviewing, processing, and denying his grievance and appeals,”

8 and failed to allege that “Defendants Sousley, Roberts, or Gates were personally involved

9 in a violation of Plaintiff’s rights or that their conduct caused such a violation,” the Court

10 dismissed Plaintiff’s claims against those Defendants, granting leave to amend. (ECF No.

11 5, at 8–9.)

12 With the benefit of the additional allegations contained in Plaintiff’s First Amended

13 Complaint, however, the Court finds that Plaintiff has stated an Eighth Amendment claim

14 against Defendant Sousley. As First Amended Complaint clarifies, Defendant Sousley is

15 a medically trained nurse who was made aware of Plaintiff’s medical needs directly by

16 interviewing Plaintiff and reviewing his medical records. (See FAC at 7–12.) Plaintiff

17 specifically alleges that he told Sousley of “this urgent and emergency situation” and that

18 Sousley is “a [r]egistered [n]urse who has the right to make [a] doctor see [Plaintiff] . . . ,”

19 and that if Sousley had contacted a doctor immediately, then Plaintiff’s medical condition

20 could have been addressed promptly. (See id. at 8–9.)

21 Although the Ninth Circuit has not ruled on whether medically-trained individuals

22 who learn of an inmate’s serious medical needs through interviews or reviewing medical

23 records in connection with grievances or appeals may be held liable if they fail to order

24 treatment addressing those needs, “[t]he emerging consensus . . . is that a medically-trained

25 official who reviews and denies an appeal is liable under the Eighth Amendment when a

26 plaintiff can show that the official knew, at least in part, from reading the appeal that the

27 plaintiff had a serious medical issue and nevertheless chose not to offer treatment.” See

1 Pogue v. Igbinosa, No. 1:07CV-01577-GMS, 2012 WL 603230, at *9 (E.D. Cal. Feb. 23,

2 2012); see also Nicholson v. Finander, No. CV 12-9993-FMO JEM, 2014 WL 1407828,

3 at *7 (C.D. Cal. Apr. 11, 2014) (“The Ninth Circuit has not ruled on whether a supervisor

4 who learns about unconstitutional behavior from a prisoner’s grievance and fails to

5 intervene is personally involved in the constitutional violation, and the district courts are

6 divided on the issue.”). This is particularly true for medically trained individuals like

7 Sousley, who personally interviews inmates in connection with their medical grievances.

8 See, e.g., Arellano v. Sedighi, No. 15-cv-2059-AJB-BGS, 2018 WL 1083386, at *10–11

9 (S.D. Cal. Feb. 27, 2018) (recommending denial of a motion to dismiss deliberate

10 indifference claims against a nurse who interviewed the plaintiff during the grievance

11 process), adopting and overruling objections, 2019 WL 1040365 (S.D. Cal. Mar. 5, 2019);

12 Arreola v. Pomazal, No. 15-cv-1179-JAM DBP, 2017 WL 3149581, at *11 (E.D. Cal. July

13 25, 2017) (concluding that because the defendant who interviewed plaintiff in his medical

14 appeal was a doctor, and therefore medically trained, he “had the ability to determine

15 whether plaintiff was receiving appropriate medical care and address plaintiff’s complaint

16 that he was receiving inadequate pain medication”); Arreola v. Dudley, No. 2:08-00805

17 JMS, 2010 WL 3033806, at *4 (E.D. Cal. July 30, 2010) (holding that allegations that a

18 defendant interviewed plaintiff regarding his medical grievance and lied to plaintiff about

19 his diagnosis were sufficient as part of a “larger allegation of deliberate indifference to

20 [p]laintiff’s medical needs”); Coleman v. Adams, No. 1:06-cv-00836-AWI-SKO PC, 2010

21 WL 2572534, at *7 (E.D. Cal. June 22, 2010) (explaining that Eighth Amendment

22 allegations stemming from an administrative interview were sufficient to survive a motion

23 to dismiss because “Plaintiff’s claim is premised on the fact that Defendants were aware of

24 a substantial risk to his safety and ignored it”). Accordingly, the Court finds that Plaintiff

25 has stated a claim against Sousley sufficient to survive the “low threshold” set for sua

26 sponte screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b). See Wilhelm,

27 680 F.3d at 1123.

1 The First Amended Complaint does not, however, state a claim against Defendants

2 Roberts and Gates. Plaintiff does not allege that he had any personal contact with

3 Defendants Roberts or Gates, or that they were personally involved in decisions regarding

4 Plaintiff’s treatment except by reviewing the information contained in his medical records

5 or gathered by Defendant Sousley. (See generally FAC at 10–12.) Unlike Defendants

6 Zhang, Sousley, and Roberts, Plaintiff does not allege that Defendant Gates has any

7 medical training, (see id. at 12), and although the attached appeal decision identifies Gates

8 as the chief of “Health Care Correspondence and Appeals Branch” of California

9 Correctional Health Care Services, (see id. at 18), nothing in the First Amended Complaint

10 or the attached documents suggests Gates had any such training or did anything other than

11 rely on the medical opinions of staff who investigated Plaintiff’s “complaints and already

12 signed off on the treatment plan.” Peralta v. Dillard, 744 F.3d 1076, 1087 (9th Cir. 2014)

13 (concluding that a physician’s response to a grievance completed in reliance on medical

14 staff did not state an Eighth Amendment claim). Similarly, although Plaintiff emphasizes

15 that Defendant Roberts is “the medical executive who has experience on medical terms,”

16 (FAC at 10), Plaintiff does not allege that Roberts treated or examined Plaintiff or did

17 anything aside from rely on the opinions of the medical staff who did examine and treat

18 Plaintiff, namely Zhang and Sousley. See Arellano, 2018 WL 1083386, at *9 n.9

19 (distinguishing between claims against a nurse who interviewed the plaintiff regarding his

20 medical conditions and the “Chief Physician and Surgeon at RJD” because the plaintiff

21 “failed to allege that [the Chief Physician] treated or examined Plaintiff or was otherwise

22 actually aware of the alleged constitutional violation” (citing Peralta, 744 F.3d at 1087));

23 see also Arellano, 2019 WL 1040365 (“Walker does have the title Chief Physician and

24 Surgeon, however Walker was justified in relying on the opinions of qualified medical staff

25 in responding to Plaintiff’s grievances.” (citing Peralta, 744 F.3d at 1087)).

26

27

1 For these reasons, Plaintiff’s claims against Defendants Roberts and Gates are

2 dismissed sua sponte for failure to state a plausible claim upon which Section 1983 relief

3 may be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b).

4 D. Leave to Amend

5 Because Plaintiff has already been provided a short and plain statement of his

6 pleading deficiencies as to Defendants Roberts and Gates, as well as an opportunity to

7 amend those claims to no avail, the Court finds that granting further leave to amend would

8 be futile. See Gonzalez v. Planned Parenthood, 759 F.3d 1112, 1116 (9th Cir. 2014)

9 (“‘Futility of amendment can, by itself, justify the denial of . . . leave to amend.’” (quoting

10 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995))); Zucco Partners, LLC v. Digimarc

11 Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been

12 granted leave to amend and has subsequently failed to add the requisite particularity to its

13 claims, [t]he district court’s discretion to deny leave to amend is particularly broad.”

14 (second alteration in original)).

15 III. Conclusion and Order

16 For the reasons discussed, the Court:

17 1) DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz,

18 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883,

19 Sacramento, California, 94283-0001;

20 2) DISMISSES Plaintiff’s claims against Defendants Roberts, and Gates in their

21 entirety without prejudice sua sponte for failure to state a claim upon which relief may be

22 granted pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b) and without further leave

23 to amend; and

24 3) DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended

25 Complaint (ECF No. 6) upon Defendants Zhang and Sousley and to forward it to Plaintiff

26 along with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the

27 Clerk will provide Plaintiff with a certified copy of this Order, a certified copy of his

1 Amended Complaint, and the summons so that he may serve the Defendants. Upon receipt

2 of this “IFP Package,” Plaintiff must complete the Form 285 as completely and accurately

3 as possible, include an address where these Defendants may be served, see S.D. Cal. Civ.

4 L.R. 4.1.c, and return it to the United States Marshal according to the instructions the Clerk

5 provides in the letter accompanying his IFP package;

6 4) ORDERS the U.S. Marshal to serve a copy of the Amended Complaint and

7 summons upon Defendants Zhang and Sousley as directed by Plaintiff on the USM Form

8 285 provided to him. All costs of that service will be advanced by the United States. See

9 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3);

10 5) ORDERS the Defendants Zhang and Sousley, once served, to reply to

11 Plaintiff’s Amended Complaint within the time provided by the applicable provisions of

12 Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant

13 may occasionally be permitted to “waive the right to reply to any action brought by a

14 prisoner confined in any jail, prison, or other correctional facility under section 1983,” once

15 the Court has conducted its sua sponte screening pursuant to 28 U.S.C. Sections 1915(e)(2)

16 and 1915A(b), and thus, has made a preliminary determination based on the face on the

17 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,”

18 defendant is required to respond); and

19 6) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

20 serve upon the Defendants, or, if appearance has been entered by counsel, upon

21 Defendants’ counsel, a copy of every further pleading, motion, or other document

22 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must

23 include with every original document he seeks to file with the Clerk of the Court, a

24 certificate stating the manner in which a true and correct copy of that document has been

25 was served on the Defendants or their counsel, and the date of that service. See S.D. Cal.

26 Civ. L.R. 5.2. Any document received by the Court which has not been properly filed with

27

1 || the Clerk, or which fails to include a Certificate of Service upon the Defendants, may be

2 || disregarded.

3 IT ISSO ORDERED.

4 || DATED: May 22, 2020 /

5 Ypilag (Lyshand

Hog. Cynthia Bashant

6 United States District Judge

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

13