Opinion

Nelson v. Allison

Court
District Court, S.D. California
Filed
Jul 8, 2022
Cited by
0 cases
Authority
More cited than 19.2%

noting that the “sincerity test,” not the “centrality test,” applies to a free exercise 24 analysis

How later courts described this case

  • noting that the “sincerity test,” not the “centrality test,” applies to a free exercise 24 analysis
  • noting that screening pursuant to § 1915A “incorporates the familiar standard 23 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 24 12(b)(6)”
  • discussing pleading requirements 19 for prisoner’s First Amendment free exercise and Fourteenth Amendment equal 20 protection claims
  • discussing 28 U.S.C. § 1915A(b)

Written by the judges who cited it.

The opinion

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 NATASHA HILDA NELSON, Case No.: 3:22-cv-00377-CAB-MDD

CDCR #G-29865,

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ORDER

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

14 [ECF No. 2]

KATHLEEN ALLISON, Secretary,

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CDCR; CONNIE GIBSON, Director of AND

16 Institutions; MARCUS POLLARD,

Warden; RAQUEL BUCKEL, Chief 2) DIRECTING U.S. MARSHAL TO

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Deputy Warden; EVERETT BENYARD, EFFECT SERVICE PURSUANT

18 Associate Warden; E. GARCIA, Captain; TO 28 U.S.C. § 1915(d) AND

MARY ANN GLYNN, Chief Executive Fed. R. Civ. P. 4(c)(3)

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Officer; L. COHEN, Senior Registered

20 Nurse,

21 Defendants.

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23 Plaintiff Natasha Hilda Nelson, a transgender inmate incarcerated at Richard J.

24 Donovan Correctional Facility (“RJD”) in San Diego, California, has filed a pro se civil

25 rights Complaint pursuant 42 U.S.C. § 1983.1 See Compl., ECF No. 1. Plaintiff claims

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1 Because Plaintiff identifies as transgender and uses the feminine pronouns she/her, the

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1 California Department of Corrections and Rehabilitation (“CDCR”) Secretary Kathleen

2 Allison, CDCR Director of Institutions Connie Gibson, and RJD Warden Marcus Pollard,

3 Chief Deputy Warden Raquel Buckel, Associate Warden Everett Benyard, Captain E.

4 Garcia, Chief Executive Officer Mary Ann Glynn, and Senior Registered Nurse (“SRN”)

5 Cohen violated her First, Eighth, and Fourteenth Amendment rights in December 2019

6 and December 2020. See id. at 1‒3. Plaintiff seeks $500,000 in both general and punitive

7 damages as to each Defendant, and injunctive relief requiring adherence to proper Covid-

8 19 prevention policies and religious accommodations for Wiccan and practitioners of the

9 Northern Tradition (Odinists) at RJD. See id. at 18.

10 Plaintiff did not prepay the $402 civil filing fee required by 28 U.S.C. § 1914(a) at

11 the time of filing, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”)

12 pursuant to 28 U.S.C. § 1915(a). See ECF No. 2.

13 I. Motion to Proceed In Forma Pauperis

14 All parties instituting any civil action, suit or proceeding in a district court of the

15 United States, except an application for writ of habeas corpus, must pay a filing fee of

16 $402.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

17 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C.

18 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

19 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

20 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

21 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th

22 Cir. 2015), and regardless of whether her action is ultimately dismissed. See 28 U.S.C.

23 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative

27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court

Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does

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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 having

9 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, 577 U.S. at 84.

13 In support of her IFP Motion, Plaintiff has submitted a copy of her CDCR Inmate

14 Statement Report and a prison certificate authenticated by a RJD Accounting Officer and

15 attesting as to her trust account activity pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal.

16 Civ. L.R. 3.2. See ECF No. 2; Andrews, 398 F.3d at 1119. These documents show

17 although Plaintiff carried an average monthly balance of $348.05 and had $165.20 in

18 average monthly deposits to her trust account during the six months preceding the filing

19 of this action, she had an available balance of only $5.74 at the time of filing. See ECF

20 No. 2 at 1, 3.

21 Therefore, the Court grants Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

22 assesses a partial initial filing fee of $76.81 pursuant to 28 U.S.C. § 1915(b)(1), but

23 declines to order the collection of that initial fee at this time because her prison certificate

24 indicates she currently has “no means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing

25 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing

26 a civil action or criminal judgment for the reason that the prisoner has no assets and no

27 means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding

28 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s

1 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him

2 when payment is ordered.”). Instead, the Court directs the Secretary of the CDCR, or her

3 designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C.

4 § 1914 and to forward them to the Clerk of the Court pursuant to the installment payment

5 provisions set forth in 28 U.S.C. § 1915(b)(1).

6 II. Sua Sponte Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

7 A. Standard of Review

8 Because Plaintiff is a prisoner and proceeding IFP, her Complaint requires a

9 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

10 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

11 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

12 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

13 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

14 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

15 the targets of frivolous or malicious suits need not bear the expense of responding.’”

16 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

17 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

18 “The standard for determining whether a plaintiff has failed to state a claim upon

19 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

20 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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

22 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

23 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

24 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter,

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

26 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

27 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

28 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

1 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

2 relief [is] . . . a context-specific task that requires the reviewing court to draw on its

3 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

4 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

5 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

6 (9th Cir. 2009).

7 B. Factual Allegations

8 Plaintiff divides her Complaints into three separate causes of action under Section

9 1983. Counts 1 and 2 relate to her exposure to and contraction of Covid-19 at RJD in

10 December 2020. Count 3 involves free exercise and religious accommodations for her

11 Wiccan faith arising in December 2019. See, e.g., Compl. at 4‒5 (Count 1); id. at 6‒12

12 (Count 2); id. at 13‒16.

13 1. Count 1

14 In Count 1, Plaintiff alleges CDCR Defendants Allison and Gibson violated both

15 her Eighth Amendment right to be free from cruel and unusual punishment and her

16 Fourteenth Amendment right to equal protection when they authorized the transfer of

17 inmates from the California Institution for Men (“CIM”) and San Quentin State Prison

18 (“SQSP”) to RJD, which is “classified as a high risk medical and transgender facility,” in

19 November and early December 2020. See Compl. at 4. Plaintiff alleges Allison and

20 Gibson did so “despite … advice and guidance from the Center for Disease Control and

21 Prevention” (“CDC”), and in direct contravention of an order issued by California’s

22 Governor to “stop all transfers after [a] SQSP outbreak.” Id. at 4‒5. Plaintiff alleges

23 RJD had “zero positive cases of Covid-19 among the inmate population” at the time, but

24 Allison and Gibson knowingly ignored the risk and sanctioned the transfer of inmates

25 from CIM, SQSP “and/or other Covid-19 hot spots” to RJD even after several transferees

26 tested positive and without first placing them in isolation or quarantine. Id. at 5. As a

27 result, Plaintiff, who is asthmatic and in a “high risk category,” together with “hundreds”

28 of other inmates and “numerous” correctional staff contracted the disease. Id. Plaintiff

1 alleges she suffered “intense anxiety,” worsened asthma and depression, feared she was

2 going to die, had difficulty breathing, and is now “showing signs of being a prediabetic.”

3 Id. Plaintiff contends Defendants Allison and Gibson acted with deliberate indifference

4 to her health and safety, and violated her right to equal protection because they “stately

5 publicly that they did these transfers to try to protect other inmates.” Id.

6 2. Count 2

7 In Count 2, Plaintiff focuses on the RJD Defendants and alleges they too violated

8 her Eighth Amendment rights by failing to enforce preventative correctional and health

9 care policies in Facility A Housing Unit 1 to protect her and others from contracting

10 Covid-19 in December 2020. See Compl. at 6‒12. Specifically, Plaintiff claims she was

11 informed by unidentified custody staff on December 5, 2020, that multiple inmates on

12 Facility A, Housing Unit 1 had tested positive for Covid-19. Id. at 6. At the time,

13 Plaintiff claims RJD “only had cloth face mask[s]” and failed to exchange them once

14 soiled, provided inadequate cleaning supplies, failed to implement social distancing

15 measures, allowed inmates who refused Covid-19 testing and who reported feeling sick

16 to work in the central kitchen and distribute food trays throughout the housing units, and

17 required inmates to congregate in pill lines instead of requiring nurses to “pack and pass”

18 medication for in-cell delivery. Id. at 6‒9. Plaintiff alleges she personally complained to

19 Defendant Benyard about the lack of and/or failure to enforce CDC and Covid-19 safety

20 protocols, and Benyard ensured her he would notify Defendants Pollard, Buckel, and

21 Garcia of Plaintiff’s concerns. Id. at 7, 8. After inmates were issued KN-95 masks on or

22 about December 13, 2022, but required to wear them even if damaged or soiled for weeks

23 at “the height of the outbreak,” Plaintiff alleges she and several fellow inmates again

24 complained, but this time to Defendant Garcia. Id. at 8. Plaintiff alleges Garcia

25 explained that inmates and staff “had a right to refuse” testing, and said he would “look

26 into the matter, but no corrective actions were ever taken.” Id. at 8. When Plaintiff asked

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1 LVN Locke why “pack and pass” medication distribution had not been implemented,

2 Locke said it was due to SRN Cohen’s failure to “declare the Covid-19 outbreak an

3 emergency.” Id. at 8‒9. Plaintiff further alleges an unidentified member of the custody

4 staff told her while in the “pill line” that Defendants Pollard and Buckel “never even

5 developed an emergency action plan [in case] there was a Covid-19 outbreak at RJD[.]”

6 Id. at 10.

7 On December 17, 2020, Plaintiff tested positive for Covid-19 and was told she

8 would “being put on isolation status.” Id. at 9. At the time, Plaintiff claims 30 other

9 inmates who had previously tested positive were also on isolation status, but none,

10 including Plaintiff were moved. Instead, Plaintiff claims she and others were instead

11 quarantined in their current cells. Id. When Plaintiff reported difficulty breathing, severe

12 asthma attacks, vomiting, and headaches to the nursing staff, she claims they only “t[ook]

13 [her] temperature and vital signs.” Id. at 9. “No other treatment was ever provided or

14 offered,” and when Plaintiff inquired why her vitals were not being checked daily, she

15 was told she was “not on the list.” Id. When unidentified custody noticed she was in

16 respiratory distress and was coughing up fluid, they radioed for a Triage and Treatment

17 Area (“TTA”) emergent response team; however, an unidentified TTA nurse informed

18 Plaintiff there was no bed space, and instructed her to lay on her bunk, “try to get the

19 fluid out of her lungs,” and to “ride it out.” Id. at 11.

20 When Plaintiff filed a CDCR Health Care Appeal Form 602-HC “to try to obtain

21 medical treatment,” to get “medical to follow [] Covid-19 policies,” and to report the

22 “imminent risk to [her] health and safety” posed by her infection and the “ongoing

23 refusal” of Defendants Pollard, Buckel, Garcia, Glynn, and Cohen to follow Covid-19

24 protocols, her appeal was classified as a “regular, non-emergency appeal.” Id. at 9‒10.

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1 Plaintiff claims this further endangered her health because “she could have died from not

2 receiving medical treatment as so many other inmates did.” Id. at 10.

3 In fact, Plaintiff alleges Defendants Pollard, Buckel, Benyard, and Garcia

4 “continued to act with deliberate indifference and a wanton disregard of [her] health and

5 safety by failing to correct the problems when they knew about them,” “even [held] a

6 food-sale fundraiser in the middle of the outbreak,” and “allow[ed] outside visitors to

7 come into RJD and pass out food.” Id. She further contends SRN Cohen “began to

8 fabricate documents and medical records to make it look as if inmates were refusing

9 Covid-19 medical treatment.” Id. at 12.

10 3. Count 3

11 In Count 3, Plaintiff switches gears and focuses on Defendant Allison, Gibson,

12 Pollard, Benyard, and Buckel’s alleged violations in 2019 of her First Amendment right

13 to free exercise and her Fourteenth Amendment right to equal protection in the practice of

14 her Wiccan faith.4 See id. at 13‒16.

15 Specifically, during the week of December 22‒28, 2019, and between the hours of

16 11:30 a.m. to 1:00 p.m., when all inmates are restricted to their cells unless participating

17 in the Enhanced Outpatient Program, at recreational therapy, or on C-status, Plaintiff

18 contends Defendants Pollard, Benyard, and Buckel authorized the Protestant Services

19 Praise and Worship Team to enter all 5 housing units in Facility A and to “us[e] band

20 instruments and microphones” to perform Christian worship songs. Id. at 13. On

21 December 24, 2019, Plaintiff contends the songs, beginning with Amazing Grace, were

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4 “The Federal Rules of Civil Procedure permit a party to ‘join, as independent or

25 alternative claims, as many claims as it has against an opposing party.’” Garity v. APWU

Nat’l Lab. Org., 828 F.3d 848, 855 n.5 (9th Cir. 2016) (quoting Fed. R. Civ. P. 18(a)).

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“Once a party properly asserts its first claim, it may use that as a platform to assert any

27 other claim—related or unrelated—against that particular opposing party.” See 1 S.

Gensler, FEDERAL RULES OF CIVIL PROCEDURE, RULES AND COMMENTARY, Rule 18, at 479

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1 “so loud that [they] drowned out [her] television,” and could be heard through her

2 headphones. Id. Plaintiff claims she requested to be released to the outdoor religious

3 grounds for the duration, but was denied and “forced to ‘attend’” this Christian worship

4 service against her will” and in violation of the First Amendment. Id.

5 Plaintiff further alleges more generally that Defendants Allison, and Gibson

6 changed CDCR policy with respect to religious practice groups so that any religion can

7 use the same outdoor religious grounds and locker space for sacred items. Id. at 14. As a

8 well-documented Wiccan practitioner, Plaintiff claims the multi-faith use of these

9 grounds and lockers desecrates them such that Odinists and Wiccans “cannot freely

10 practice their respective religions.” Id. at 14‒15, 16.

11 Plaintiff also contends that while some beliefs are similar, Odinist and Wiccans

12 “do not practice the same,” yet Defendants Allison, Gibson, Pollard, Buckel, and

13 Benyard “actively discriminate” against them by “lump[ing]” the pagan traditions

14 together, “routinely cancelling their religious services,” and denying approval for

15 religious holidays and banquets, wheelchair access, and the tools to care for their outdoor

16 religious spaces. Id. at 15‒16. Plaintiff claims these policies violate both her First

17 Amendment right to free exercise of her faith, and her Fourteenth Amendment right to

18 equal protection because Defendants do not similarly “force all of the different Christian

19 religious groups to attend service together,” routinely allow Christian religious services,

20 and do not require Native Americans to share their ground keeping tools or sweat lodges.

21 Id. at 15.

22 C. Discussion

23 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

24 elements: (1) that a right secured by the Constitution or laws of the United States was

25 violated, and (2) that the alleged violation was committed by a person acting under the

26 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

27 1035‒36 (9th Cir. 2015).

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1 As currently pleaded and liberally construed, the Court finds Plaintiff’s Complaint

2 contains plausible First, Eighth, and Fourteenth Amendment free exercise, cruel and

3 unusual punishment, and equal protection claims “sufficient to warrant ... an answer.”

4 Wilhelm, 680 F.3d at 1123; 28 U.S.C. §§ 1915(e)(2), 1915A(b). See also Helling v.

5 McKinney, 509 U.S. 25, 33 (1993) (prison officials may not “be deliberately indifferent

6 to the exposure of inmates to a serious, communicable disease”); Hutto v. Finney, 437

7 U.S. 678, 682‒83 (1978) (affirming a finding of an Eighth Amendment violation where a

8 facility housed individuals in crowded cells with others suffering from infectious

9 diseases, such as Hepatitis and venereal disease, and the individuals’ “mattresses were

10 removed and jumbled together each morning, then returned to the cells at random in the

11 evening”); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007) (recognizing a

12 cause of action under the Eighth Amendment and 42 U.S.C. § 1983 for an alleged policy

13 of not screening inmates for infectious diseases—HIV, Hepatitis C, and Heliobacter

14 pylori—and for housing contagious and healthy individuals together during a known

15 “epidemic of hepatitis C”); Maney v. Hall, 516 F. Supp. 2d 1161, 1179 (D. Or. Feb. 2,

16 2021) (citing cases recognizing prison officials’ duty to protect inmates from exposure to

17 communicable diseases under the Eighth Amendment); Hartmann v. Cal. Dept. of Corr.

18 and Rehab., 707 F.3d 1114, 1122‒24 (9th Cir. 2013) (discussing pleading requirements

19 for prisoner’s First Amendment free exercise and Fourteenth Amendment equal

20 protection claims); Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (to implicate the

21 Free Exercise Clause, a prisoner must allege that the belief at issue is both “sincerely

22 held” and “rooted in religious belief.”); Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir.

23 2008) (noting that the “sincerity test,” not the “centrality test,” applies to a free exercise

24 analysis); Jones v. Williams, 791 F.3d 1023, 1031‒32 (9th Cir. 2015) (a free exercise

25 claim in the prison context requires a plausible allegation that a government action

26 substantially burdens plaintiff’s practice of his religion).

27 Based on these precedents, the Court will direct the U.S. Marshal to effect service

28 upon the Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the

1 court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R.

2 Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal

3 or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

4 U.S.C. § 1915.”).5

5 III. Conclusion and Orders

6 For the reasons discussed, the Court:

7 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).

8 2) DIRECTS the Secretary of the CDCR, or her designee, to collect from

9 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly

10 payments from her account in an amount equal to twenty percent (20%) of the preceding

11 month’s income and forwarding those payments to the Clerk of the Court each time the

12 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

13 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

14 ASSIGNED TO THIS ACTION.

15 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

16 on Kathleen Allison, Secretary, California Department of Corrections and Rehabilitation,

17 P.O. Box 942883, Sacramento, California, 94283-0001, or in the alternative by

18 forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.

19 4) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF

20 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for

21 Defendants Allison, Gibson, Pollard, Buckel, Benyard, Garcia, Glynn, and Cohen. In

22 addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified

23 copy of her Complaint, and the summons so that she may serve these Defendants. Upon

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5 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative

27 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. Cal. 2007).

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1 receipt of this “IFP Package,” Plaintiff must complete the USM Form 285s as completely

2 and accurately as possible, include an address where each Defendant may be found

3 and/or subject to service, and return them to the United States Marshal according to the

4 instructions the Clerk provides in the letter accompanying her IFP package.

5 5) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

6 upon Defendants Allison, Gibson, Pollard, Buckel, Benyard, Garcia, Glynn, and Cohen

7 as directed by Plaintiff on the USM Form 285s provided to her, and file executed waivers

8 of personal service upon each Defendant with the Clerk of Court as soon as possible after

9 their return. Should any Defendant fail to return the U.S. Marshal’s request for waiver of

10 personal service, the U.S. Marshal shall instead file the completed Form USM 285

11 Process Receipt and Return with the Clerk of Court, include the date the summons,

12 Complaint, and request for waiver was mailed to that Defendant, and note that service

13 upon that party remains unexecuted. All costs of U.S. Marshal service will be advanced

14 by the United States; however, if a Defendant located within the United States fails,

15 without good cause, to sign and return the waiver requested by the Marshal on behalf of

16 Plaintiff, the Court will impose upon the Defendant any expenses later incurred in

17 making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3), (d)(2).

18 6) ORDERS Defendants Allison, Gibson, Pollard, Buckel, Benyard, Garcia,

19 Glynn, and Cohen, once served, to reply to Plaintiff’s Complaint, and any subsequent

20 pleading Plaintiff may file in this matter in which they are named as parties, within the

21 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a) and

22 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted

23 to “waive the right to reply to any action brought by a prisoner confined in any jail,

24 prison, or other correctional facility under section 1983,” once the Court has conducted

25 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has

26 made a preliminary determination based on the face on the pleading alone that Plaintiff

27 has a “reasonable opportunity to prevail on the merits,” defendant is required to respond).

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

2 ||serve upon Defendants Allison, Gibson, Pollard, Buckel, Benyard, Garcia, Glynn, and

3 || Cohen, or if appearance has been entered by counsel, upon Defendants’ counsel, a copy

4 || of every further pleading, motion, or other document submitted for the Court’s

5 consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original

6 document he seeks to file with the Clerk of the Court, a certificate stating the manner in

7 || which a true and correct copy of that document has been was served on Defendants or

8 || their counsel, and the date of that service. See S.D. Cal. CivLR 5.2.

9 IT IS SO ORDERED.

10 || Dated: July 8, 2022 €

11

Hon. Cathy Ann Bencivengo

12 United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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