“A state law 22 claim is part of the same case or controversy when it shares a ‘common nucleus of operative 23 fact’ with the federal claims and the state and federal claims would normally be tried 24 together.”
How later courts described this case
- “A state law 22 claim is part of the same case or controversy when it shares a ‘common nucleus of operative 23 fact’ with the federal claims and the state and federal claims would normally be tried 24 together.”
- discussing 28 U.S.C. § 1915A(b)
- noting that § 1915A screening “incorporates the familiar standard applied in the 2 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”
- There must be more than “labels and conclusions” 23 or “a formulaic recitation of the elements of a cause of action,” to plausibly state a claim, 24 as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice” to state a claim.
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JOSEPH WARD, Case No.: 3:23-cv-1423-BAS-AHG
CDCR #BN-7790,
12
ORDER:
Plaintiff,
13
vs. (1) SCREENING SECOND
14
AMENDED COMPLAINT
CORRECTIONAL OFFICERS
15 PURSUANT TO 28 U.S.C.
PASCUAL, SOSA and MASSARO,
§§ 1915(e)(2) & 1915A(b);
16 Defendants.
17 (2) DISMISSING DEFENDANTS
SOSA AND MASSARO; and
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19 (3) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF SECOND
20
AMENDED COMPLAINT AND
21 SUMMONS AS TO DEFENDANT
PASCUAL PURSUANT TO 28 U.S.C.
22
§ 1915(d) & Fed. R. Civ. P. 4(c)(3)
23
24 On July 31, 2023, Plaintiff Joseph Ward, a state prisoner proceeding pro se, filed a
25 civil rights Complaint pursuant to 42 U.S.C. § 1983 along with a motion to proceed in
26 forma pauperis (“IFP”) and a motion to appoint counsel. (ECF Nos. 1–3.) Plaintiff claims
27 that while housed at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego,
28 California, Defendants RJD Correctional Officers Pascual, Sosa and Massaro left his cell
1 door open to allow another inmate to attack him and then delayed medical care in retaliation
2 for Plaintiff filing an inmate complaint. (See Compl., ECF No. 1 at 3–7.)
3 On October 25, 2023, the Court granted Plaintiff leave to proceed IFP, denied his
4 motion to appoint counsel, and screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)
5 & 1915A(b). (ECF No. 4.) The Court determined that the allegations in the Complaint
6 were sufficient to survive screening only with respect to a First Amendment retaliation
7 claim and an Eighth Amendment failure to protect claim against Defendant Pascual, and
8 that Plaintiff was entitled to have the U.S. Marshal effect service of the summons and
9 Complaint as to that Defendant. (Id. at 5–8.) The Court found the Complaint did not
10 survive screening with respect to any other claims or Defendants and provided Plaintiff a
11 choice of proceeding with his Complaint against Defendant Pascual only or filing an
12 amended complaint on or before December 8, 2023. (Id. at 6–11.) On November 15, 2023,
13 Petitioner filed a request for an extension of time to amend and filed a First Amended
14 Complaint on November 17, 2023. (ECF Nos. 6, 8.) On November 20, 2023, the Court
15 granted Plaintiff’s motion for an extension of time to amend to January 4, 2024. (ECF No.
16 7.) Plaintiff has now filed a Second Amended Complaint (“SAC”). (ECF No. 9.)
17 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
18 A. Standard of Review
19 Because Plaintiff is a prisoner proceeding IFP, the Complaint requires a pre-Answer
20 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte
21 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails
22 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203
23 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes
24 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
25 “The standard for determining whether a plaintiff has failed to state a claim upon
26 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
27 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
28 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
1 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
2 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule
3 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state
4 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
5 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining
6 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
7 requires the reviewing court to draw on its judicial experience and common sense.” Id.
8 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
9 acting under color of state law, violate federal constitutional or statutory rights.”
10 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability,
11 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws
12 of the United States, and (2) that the deprivation was committed by a person acting under
13 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
14 B. Allegations in the SAC
15 Plaintiff alleges that in June 2022, Defendant RJD Correctional Officer Pascual
16 became enraged when he assumed Plaintiff deliberately delayed following an order to
17 return to his housing unit. (SAC at 3.) Defendant Pascual then “labeled Plaintiff a sex
18 offender to the inmate population” of his housing unit and told Plaintiff “you sex offenders
19 should be killed or words to that effect.” (Id.) Plaintiff told Pascual not to speak to him in
20 that manner and that he would inform the Warden and file a 602 inmate grievance against
21 Pascual. (Id. at 4.) Pascual continued referring to Plaintiff as a sex offender to other
22 inmates. (Id.) Plaintiff requested to change his housing unit and complained in a letter to
23 the Warden and in an inmate grievance that Pascual’s behavior placed him at risk of being
24 attacked by other inmates in his housing unit. (SAC at 4–5.) Plaintiff claims Pascual knew
25 he was placing him at risk of assault because his housing unit mixed general population
26 inmates with sensitive needs inmates who are prone to violent and assaultive behavior from
27 general population inmates. (Id. at 5.)
28 On July 7, 2022, Plaintiff was attacked and seriously injured by another inmate. (Id.
1 at 6.) The assault resulted from a violation of clearly established California Department of
2 Corrections and Rehabilitation (“CDCR”) policies by Pascual and Defendants RJD
3 Correctional Officers Sosa and Massaro regarding opening and closing cell doors. (Id.)
4 “Plaintiff alerted Defendants Pascual, Sosa and Massaro that his cell door was not secured
5 before the attack took place. All three Defendants deliberately failed to secure Plaintiff’s
6 cell door after Plaintiff requested to have his assigned housing unit cell door secured.”
7 (SAC at 7.) “After the attack, Defendant Pascual observed Plaintiff’s injuries and failed to
8 activate his emergency personal alarm, which he is required to do.” (Id.) Defendant Sosa
9 also observed Plaintiff’s injuries but “failed to issue an emergency 911 call, which he is
10 required to do.” (Id.) Defendant Massaro “knew the Plaintiff’s injuries were the result of
11 a knife attack, and deliberately failed to activate his personal alarm and call a 911
12 emergency medical code, which he is required to do.” (Id.) Plaintiff “actively bled for
13 more than 10 minutes before an emergency 911 call was sent to the TTA Emergency
14 Treatment Team.” (SAC at 7.) Plaintiff’s inmate grievance was granted with a finding
15 that CDCR policies were violated. (Id. at 8.) His injuries were treated at an off-site medical
16 facility, and he was rehoused in Administrative Segregation upon return to RJD due to
17 safety concerns. (Id.)
18 Plaintiff claims Defendants violated his Eighth Amendment right to be free from
19 cruel and unusual punishment by failing to protect him from assault, by creating the
20 conditions which resulted in his attack in deliberate indifference to his safety, and by
21 delaying medical care. (Id. at 9–14.) He claims Defendants violated his Fourteenth
22 Amendment equal protection rights by subjecting him to invidious discriminatory
23 treatment without a legitimate penological purpose, and violated his First Amendment
24 rights because they did so in retaliation for complaining that Pascual labeled him a sex
25 offender. (SAC at 15–22.) He also presents state law claims for negligence and under
26 California Civil Code § 1714 for dereliction of duty. (Id. at 24.) He seeks declaratory and
27 injunctive relief as well as monetary damages. (Id. at 25.)
28 C. Discussion
1 1. Eighth Amendment claims
2 The Cruel and Unusual Punishments Clause of the Eighth Amendment, which is
3 applicable to the states through the Fourteenth Amendment, imposes a duty on prison
4 officials to “‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v.
5 Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27
6 (1984)). “[A] prison official violates the Eighth Amendment only when two requirements
7 are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’”
8 Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “The second
9 requirement follows from the principle that ‘only the unnecessary and wanton infliction of
10 pain implicates the Eighth Amendment,’” and requires that “a prison official must have a
11 ‘sufficiently culpable state of mind,’” that is, “one of ‘deliberate indifference’ to inmate
12 health or safety.” Id. (quoting Wilson, 501 U.S. at 297, 302–03). The prison official must
13 “know[] of and disregard[] an excessive risk to inmate health or safety; the official must
14 both be aware of facts from which the inference could be drawn that a substantial risk of
15 serious harm exists, and he must also draw the inference.” Id. at 837.
16 The allegations in the SAC are sufficient to survive the “low threshold” of the
17 screening required by 28 U.S.C. §§ 1915(e)(2) & 1915A(b) with respect to an Eighth
18 Amendment failure to protect claim against Defendant Pascual. Plaintiff alleges Defendant
19 Pascual told Plaintiff that sex offenders should die, told other inmates Plaintiff was a sex
20 offender, and left Plaintiff’s cell door open, and no other cell door open, despite Plaintiff
21 asking for it to be closed, which allowed an inmate to stab Plaintiff. Defendant alleges
22 these activities all occurred in retaliation for complaining that Pascual had placed him in
23 danger by announcing Plaintiff was a sex offender. These allegations are sufficient to pass
24 the screening threshold. Farmer, 511 U.S. at 834; Wilhelm, 680 F.3d at 1123; Iqbal, 556
25 U.S. at 678. Accordingly, Plaintiff is entitled to have the U.S. Marshal effect service of
26 the summons and SAC against Defendant Pascual. See 28 U.S.C. § 1915(d) (“The officers
27 of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed.
28 R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal
1 or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28
2 U.S.C. § 1915.”) Plaintiff is reminded that the sua sponte screening process is “cumulative
3 of, not a substitute for, any subsequent [motion to dismiss] that the defendant may choose
4 to bring.” Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. 2007).
5 The Court found in its prior screening order that the original Complaint failed to
6 include allegations that Sosa and Massaro were aware of a threat to Plaintiff, were aware
7 that Pascual had informed other inmates that Plaintiff was a sex offender, or that they
8 participated in leaving his cell door open on that occasion. (See ECF No. 4 at 6–7.) The
9 SAC has not cured that defect of pleading an Eighth Amendment failure to protect claim
10 against Sosa and Massaro. Rather, Plaintiff once again alleges in conclusory terms that
11 these two Defendants violated CDCR policy regarding opening and closing cell doors, that
12 they “deliberately failed to secure” his cell door, that Plaintiff alerted them that his cell
13 door was not closed, and that they were “deliberately indifferent to Plaintiff’s health and
14 safety [and] to a known risk of harm.” (SAC at 6–11.)
15 The Court informed Plaintiff in its prior screening order that he was required to
16 present factual allegations plausibly alleging Sosa and Massaro knew of and disregarded a
17 risk to his safety. (ECF No. 4 at 6.) Plaintiff once again alleges in the SAC in a conclusory
18 manner that the Defendants were “deliberately indifferent to . . . a known risk of harm.”
19 (SAC at 9.) However, as Plaintiff was previously informed, the Court is not “required to
20 accept as true allegations that are merely conclusory, unwarranted deductions of fact, or
21 unreasonable inferences.” Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.
22 2004); see also Iqbal, 556 U.S. at 678 (There must be more than “labels and conclusions”
23 or “a formulaic recitation of the elements of a cause of action,” to plausibly state a claim,
24 as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
25 statements, do not suffice” to state a claim.) Because the SAC once again fails to plausibly
26 allege Defendants Sosa and Massaro were aware that leaving Plaintiff’s cell door open
27 subjected him to a risk of assault, the Eighth Amendment failure to protect claim against
28 Sosa and Massaro in the SAC is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
1 1915A(b)(1) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at
2 1121.
3 Plaintiff has also once again failed to plausibly allege an Eighth Amendment claim
4 against any Defendant for interference with medical care. “In order to prevail on an Eighth
5 Amendment claim for inadequate medical care, a plaintiff must show ‘deliberate
6 indifference’ to his ‘serious medical needs.’” Colwell v. Bannister, 763 F.3d 1060, 1066
7 (9th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Deliberate
8 indifference ‘may appear when prison officials deny, delay or intentionally interfere with
9 medical treatment, or it may be shown by the way in which prison physicians provide
10 medical care.’” Id. (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.
11 1988)). A prison official “who actually knew of a substantial risk to inmate health or safety
12 may be found free from liability if they responded reasonably to the risk, even if the harm
13 ultimately was not averted.” Farmer, 511 U.S. at 844.
14 The original Complaint alleged Plaintiff approached the Defendants bleeding and
15 asked them to call for medical attention. Plaintiff alleges they told him they had already
16 called but then waited ten minutes before calling again while Plaintiff was being treated by
17 a nurse. (Compl. at 6.) The Court found those allegations failed to plausibly allege a denial
18 of medical care claim because there were no allegations that additional medical aid would
19 have arrived sooner if Defendants had called again sooner and no allegations Plaintiff
20 suffered any harm from their waiting ten minutes to call again while he was being treated
21 by a nurse. (ECF No. 4 at 6–7.) Plaintiff now alleges in the SAC that: “After the attack,
22 Defendant Pascual observed Plaintiff’s injuries and failed to activate his emergency
23 personal alarm, which he is required to do,” that Defendant Sosa also observed Plaintiff’s
24 injuries but “failed to issue an emergency 911 call, which he is required to do,” and that
25 Defendant Massaro “knew the Plaintiff’s injuries were [the] result of a knife attack, and
26 deliberately failed to activate his personal alarm and call a 911 emergency medical code,
27 which he is required to do.” (SAC at 7.) Plaintiff “actively bled for more than 10 minutes
28 before an emergency 911 call was sent to the TTA Emergency Treatment Team.” (Id.)
1 There are obvious contradictions between Plaintiff’s previous allegation in the
2 original Complaint that Defendants immediately called for medical care and his new
3 allegations in the SAC that he “actively bled for more than 10 minutes before an emergency
4 911 call was sent to the TTA Emergency Treatment Team.” See e.g. Airs Aromatics, LLC
5 v. Opinion Victoria’s Secret Stores Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014)
6 (noting “[a] party cannot amend pleadings to directly contradic[t] an earlier assertion made
7 in the same proceeding”). Furthermore, Plaintiff once again merely alleges a breach of
8 Defendant’s duty to activate their personal alarms. Plaintiff does not plausibly allege
9 medical care was delayed by that failure or that the ten-minute delay in placing an
10 emergency 911 call to the TTA Emergency Treatment Team caused a delay in medical
11 treatment. There are once again no factual allegations medical care was delayed by any
12 action or inaction of any Defendant. Rizzo, 423 U.S. at 371–72 (holding a plaintiff must
13 plead and prove an affirmative link between an injury and a defendant’s conduct).
14 The Court sua sponte dismisses the Eighth Amendment medical care claim in the
15 SAC against all Defendants pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) for
16 failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.
17 2. Retaliation claim
18 “Within the prison context, a viable claim of First Amendment retaliation entails
19 five basic elements: (1) An assertion that a state actor took some adverse action against an
20 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled
21 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably
22 advance a legitimate correctional goal.” Rhodes, 408 F.3d at 567–68. Plaintiff ’s allegation
23 in the SAC that Defendant Pascual allowed an inmate to attack him in retaliation for
24 Plaintiff writing to the Warden and filing an inmate grievance is sufficient to survive the
25 “low threshold” of the screening required by 28 U.S.C. §§ 1915(e)(2) & 1915A(b) with
26 respect to a First Amendment retaliation claim. Id. (noting inmate complaints are protected
27 conduct). Plaintiff is entitled to have the U.S. Marshal effect service of the summons and
28 SAC against Defendant Pascual. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3)
1 However, Plaintiff has once again failed to plausibly allege a retaliation claim
2 against Defendants Sosa and Massaro for the same reasons the Court found the allegations
3 in the original Complaint failed to state a retaliation claim against them. As discussed
4 above, there are once again no allegations in the SAC that Defendants Sosa or Massaro
5 were involved in or knew of Pascual’s conduct, and there are no allegations they were
6 aware Plaintiff filed a grievance or wrote to the Warden complaining of Pascual’s actions.
7 Thus, there are no allegations they took an adverse action against Plaintiff because of his
8 protected conduct. Rhodes, 408 F.3d at 567–68.
9 The Court sua sponte dismisses the First Amendment retaliation claim in the SAC
10 against Defendants Sosa and Massara pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
11 1915A(b)(1) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at
12 1121.
13 3. Equal Protection claim
14 Plaintiff alleges all three Defendants treated him “invidiously dissimilar to similarly
15 situated inmates” as there was no legitimate reason for them to leave his cell door open
16 while closing all the other cell doors. (SAC at 15–19.) Plaintiff claims Defendant Pascual
17 treated him differently than other inmates by labeling him a sex offender and leaving his
18 cell door open without a rational basis for doing so. (Id. at 17.)
19 “The Equal Protection Clause requires the State to treat all similarly situated people
20 equally.” Hartmann v. Cal. Dep’t of Corrs. and Rehab., 707 F.3d 1114, 1123 (9th Cir.
21 2013) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Plaintiff
22 may state an equal protection claim by alleging facts from which a plausible inference can
23 be drawn that the Defendants intentionally discriminated against him based on his
24 membership in a protected class. Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003).
25 The Court informed Plaintiff in its prior screening Order that he failed to allege he is a
26 member of a protected class. (ECF No. 4 at 8–9.) The Court further noted there were no
27 allegations in the Complaint to support a “class of one” equal protection claim, which
28 requires allegations that similarly situated prisoners were intentionally treated differently
1 and Plaintiff was singled out for disparate treatment without a rational relationship to a
2 legitimate purpose. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601–02 (2008).
3 The allegations in the SAC that Defendant Pascual intentionally allowed another
4 inmate to attack Plaintiff because Pascual perceived Plaintiff to be a sex offender who
5 should be killed are sufficient to plausibly allege Pascual singled Plaintiff out for disparate
6 treatment without a rational relationship to a legitimate penological purpose in violation of
7 his equal protection rights. However, because Plaintiff once again fails to present factual
8 allegations that Defendants Sosa and Massaro were involved in Pascual’s alleged actions
9 or present facts plausibly alleging they knew there was no penological justification for
10 leaving his cell door open, the SAC fails to plausibly allege an equal protection claim
11 against them. The Court sua sponte dismisses the equal protection claim in the SAC
12 against Defendants Sosa and Massaro pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
13 1915A(b)(1) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at
14 1121.
15 4. State law claims
16 The Court has discretion to accept supplemental jurisdiction over Plaintiff’s state
17 law claims. See 28 U.S.C. §1367(a) (“[I]n any civil action of which the district courts have
18 original jurisdiction, the district courts shall have supplemental jurisdiction over all other
19 claims that are so related to claims in the action within such original jurisdiction that they
20 form part of the same case or controversy under Article III of the United States
21 Constitution.”); Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (“A state law
22 claim is part of the same case or controversy when it shares a ‘common nucleus of operative
23 fact’ with the federal claims and the state and federal claims would normally be tried
24 together.”) However, Plaintiff was instructed in the Court’s prior Order dismissing the
25 state law claims from his original Complaint that had failed to plead compliance with the
26 California Torts Claims Act, which is a pleading requirement for tort claims against
27 California government employees. Gatto v. Cnty. of Sonoma, 98 Cal. App. 4th 744, 763
28 (2002); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988)
1 (holding failure to comply with California Torts Claims Act bars pendent state tort claims,
2 although dismissal without prejudice to allow plaintiff to plead compliance is appropriate).
3 The Court at that time dismissed the state law claims without prejudice to Plaintiff to plead
4 compliance with the California Tort Claims Act. (ECF No. 4 at 10.) Plaintiff has not cured
5 that pleading defect of the original Complaint in the SAC. Accordingly, the Court will not
6 at this time accept supplemental jurisdiction over Plaintiff’s state law claims.
7 IV. Conclusion and Orders
8 Good cause appearing, the Court:
9 1. DISMISSES all claims in Plaintiff’s Second Amended Complaint against all
10 Defendants without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) with the
11 exception of the Eighth Amendment failure to protect claim, the First Amendment
12 retaliation claim, and the Fourteenth Amendment Equal Protection claim against
13 Defendant Pascual.
14 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s Second Amended
15 Complaint (ECF No. 9) for Defendant Pascual and forward it to Plaintiff along with a blank
16 U.S. Marshal Form 285. The Clerk will provide Plaintiff with certified copies of the
17 Second Amended Complaint and summons for use in serving Defendant. Upon receipt of
18 this “In Forma Pauperis Package,” Plaintiff must complete the USM Form 285 as
19 completely and accurately as possible, include an address where Defendant may be found
20 and/or subject to service pursuant to S.D. Cal. CivLR 4.1(c), and return the forms to the
21 United States Marshal according to the instructions the Clerk provides in the letter
22 accompanying the In Forma Pauperis Package.
23 3. ORDERS the U.S. Marshal to serve a copy of the Second Amended
24 Complaint and summons upon Defendant Pascual as directed by Plaintiff on the USM
25 Form 285. Costs of service will be advanced by the United States. See 28 U.S.C.
26 § 1915(d); Fed. R. Civ. P. 4(c)(3).
27 4. ORDERS Defendant, once served, to reply to Plaintiff’s Second Amended
28 Complaint and any subsequent pleading Plaintiff files in this matter in which Defendant is
1 ||named as a party within the time provided by the applicable provisions of Federal Rules of
2 || Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendants may
3 || occasionally be permitted to “waive the right to reply to any action brought by a prisoner
4 ||confined in any jail, prison, or other correctional facility under section 1983,” once the
5 || Court has conducted its sua sponte screening Defendants are required to respond).
6 5. ORDERS Plaintiff, after service, to serve upon Defendant, or if appearance
7 ||has been entered by counsel, upon Defendant’s counsel, a copy of every further pleading,
8 || motion, or other document submitted for the Court’s consideration pursuant to Fed. R. Civ.
9 ||P. 5(b). Plaintiff must include with every original document sought to be filed with the
10 || Clerk, a certificate stating the manner in which a true and correct copy of that document
11 ||has been served on Defendant or their counsel, and the date of service. See S.D. Cal. CivLR
12 Any document received by the Court which has not been properly filed with the Clerk
13 which fails to include a Certificate of Service upon a Defendant, or their counsel, may
14 || be disregarded.
15 IT IS SO ORDERED.
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17 ATED: March 25, 2024 ( ytd 4 (Bupha. 6
18 sited Vinten District Judge
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