# Moore v. Duran

> District Court, S.D. California · March 9, 2023

URL: https://www.frixlaw.com/law-library/cases/10087293

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 9, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087293

## How later opinions describe it (automated extraction)

- finding that “the applicable statute 8 of limitations must be tolled while a prisoner completes the mandatory exhaustion process” 9 required by 42 U.S.C. § 1997e(a)
- noting that “[o]ther federal circuit courts of appeals have held that the [90]-day service period 1s tolled until the court screens 25 ||a plaintiff's in forma pauperis complaint[.]’’

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 MERRICK MOORE, Case No.: 3:23-cv-0194-GPC-DDL
CDCR #H-82249,
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ORDER: (1) SCREENING
Plaintiff,
13 COMPLAINT PURSUANT
vs. TO 28 U.S.C. § 1915A(a) AND
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(2) DIRECTING CLERK OF COURT
J.J. DURAN; D. MANQUERO; J.
15 TO ISSUE A SUMMONS PURSUANT
VALENCIA; W. SMITH; A.
TO Fed. R. Civ. P. 4(b)
16 GONZALEZ; P. BRACAMONTE; S.
ANDERSON; A. CORTEZ; P.
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COVELLO; S. SEARLESS; C. DAVIS;
18 M. CASTILLO,
19 Defendants.
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21 Plaintiff Merrick Moore, currently incarcerated at Salinas Valley State Prison
22 (“SVSP”), is proceeding pro se in this civil action filed pursuant to 42 U.S.C. § 1983. See
23 Compl., ECF No. 1. Plaintiff claims Richard J. Donovan Correctional Facility (“RJD”)
24 officials violated his Eighth Amendment rights by using excessive force against him in
25 August of 2018. See generally Comp. Plaintiff seeks $750,000 in general and punitive
26 damages and demands a jury trial. Id. at 10. On March 1, 2023, Plaintiff paid the $402
27 initial civil filing fee 28 U.S.C. § 1914(a) requires to commence a civil action. Id. at 3.
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1 I. Screening of Complaint pursuant to 28 U.S.C. § 1915A
2 The Court now conducts its initial review of Plaintiff’s Complaint pursuant to 28
3 U.S.C. § 1915A(a), because he is a prisoner and seeks “redress from a governmental entity
4 or officer or employee of a governmental entity.” See 28 U.S.C. § 1915A(a). Section
5 1915A(a) “mandates early review—‘before docketing [] or [] as soon as practicable after
6 docketing’—for all complaints ‘in which a prisoner seeks redress from a governmental
7 entity or officer or employee of a governmental entity.’” Chavez v. Robinson, 817 F.3d
8 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of § 1915A apply to all
9 prisoners, no matter their fee status, who bring suit against a governmental entity, officer,
10 or employee. See, e.g. Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).
11 “On review, the court shall … dismiss the complaint, or any portion of the
12 complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may
13 be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.”
14 Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (citing 28
15 U.S.C. § 1915A(b)). “Failure to state a claim under § 1915A incorporates the familiar
16 standard applied in the context of failure to state a claim under Federal Rule of Civil
17 Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012).
18 “[W]henever prison officials stand accused of excessive physical force in violation
19 of the [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a
20 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
21 harm.” Hudson v. McMillian, 503 U.S. 1, 6‒7 (1992). In analyzing a claim of excessive
22 force, courts consider the following factors: the need for the application of force, the
23 relationship between the need and the amount of force used, the extent of the injury
24 suffered, the threat reasonably perceived by the responsible officials, and any efforts made
25 to temper the severity of a forceful response. Id. at 7.
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1 As currently pleaded, the Court finds the factual allegations in Plaintiff’s Complaint
2 involve plausible Eighth Amendment excessive force violations that are “sufficient to meet
3 the low threshold for proceeding past the screening stage.” Wilhelm, 680 F.3d at 1123;
4 Iqbal, 556 U.S. at 678; 28 U.S.C. § 1915A(b)(1). While the actions contained in this
5 Complaint allegedly occurred in 2018 which appears to be outside the appropriate statute
6 of limitations, Plaintiff is entitled to tolling while he exhausted his administrative remedies.
7 See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (finding that “the applicable statute
8 of limitations must be tolled while a prisoner completes the mandatory exhaustion process”
9 required by 42 U.S.C. § 1997e(a)).
10 However, the Court’s docket does not show Plaintiff requested the Clerk to issue a
11 summons, “present[ed] a summons to the clerk for signature and seal” pursuant to Fed. R.
12 Civ. P. 4(b), or has yet procured a waiver or execute service of his Complaint upon any of
13 the named Defendants. While prisoners proceeding in forma pauperis (“IFP”) are
14 ordinarily entitled to have the U.S. Marshal or deputy marshal effect service of process of
15 their behalf pursuant to Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), persons who
16 prepay civil filing fees “remain[] responsible for timely service.” Boudette v. Barnette,
17 923 F.2d 754, 757 (9th Cir. 1991); Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S.
18 97, 104 (1987) (“Before a ... court may exercise personal jurisdiction over a defendant, the
19 procedural requirement of service of summons must be satisfied.”).
20 II. Conclusion and Order
21 Accordingly, the Court DIRECTS the Clerk of the Court to issue a summons upon
22 the Defendants identified in Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 4(b) so that
23 he may execute service upon them as required by Fed. R. Civ. P. 4(c). Plaintiff must effect
24 personal service within 90 days of this Order, and file proof of that service pursuant to Fed.
25 R. Civ. P. 4(l), or procure and file waivers of personal service pursuant to Fed. R. Civ. P.
26 4(d) within that time, or face dismissal of this action without prejudice pursuant to Fed. R.
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1 || Civ. P. 4(m).!
2 IT IS SO ORDERED.
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4 Dated: March 9, 2023 2 / OH
5 Hon. Gonzalo P. Curiel
6 United States District Judge
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21 ||' Because Plaintiff is not proceeding IFP, he is “responsible for having the summons and
99 complaint served” now that his pleading has survived the sua sponte screening required by
28 U.S.C. § 1915A(a). See Fed. R. Civ. P. 4(c)(1). The Court has tolled Rule 4(m)’s
23 || service clock while it conducted that screening. See Butler v. Nat’l Cmty. Renaissance of
California, 766 F.3d 1191, 1204 n.8 (9th Cir. 2014) (noting that “[o]ther federal circuit
courts of appeals have held that the [90]-day service period 1s tolled until the court screens
25 ||a plaintiff's in forma pauperis complaint[.]’’) (citing Robinson v. Clipse, 602 F.3d 605, 608
(4th Cir. 2010); Urrutia v. Harrisburg Cnty. Police Dep’t, 91 F.3d 451, 459 (3d Cir. 1996)).
6 Plaintiff is cautioned, however, that “the sua sponte screening and dismissal procedure is
27 ||cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a
28 defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D.
Cal. 2007).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087293. Public record. Not legal advice.