Medina v. Campos et al

Filing 104

ORDER Revoking Plaintiff's In Forma Pauperis Status on Appeal signed by Magistrate Judge Dennis L. Beck on 08/05/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOHN DOE,

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CASE NO. 1:09-CV-00544-DLB PC
Plaintiff,

ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS ON APPEAL

v.
JULIO CAMPOS, et al.,

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Defendants.
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Plaintiff John Doe1 (“Plaintiff”) is a prisoner in the custody of the California Department

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of Corrections and Rehabilitation. Plaintiff was proceeding pro se and in forma pauperis in this

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civil rights action. Plaintiff initiated this action by filing his complaint on March 23, 2009. On

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September 23, 2010, the Court dismissed from the action Defendants Chief of Psychiatric

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Services, D. Trinh, Nayla Syed, James Tilton, and J. Acosta for failure to state a claim. On July

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13, 2011, the Court dismissed this action for failure to effect service of process on Defendant

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Julio Campos, the only remaining Defendant in the action. Plaintiff subsequently filed a notice

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of appeal on July 25, 2011. Doc. 100.

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Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if

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the trial court certifies in writing that it is not taken in good faith.” The Court finds that

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Plaintiff’s appeal is not taken in good faith.

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Regarding Defendants Chief of Psychiatric Services, D. Trinh, Nayla Syed, James Tilton,

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and J. Acosta, the Court granted a motion to dismiss for failure to state a claim. The motion was

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filed by Defendant James Tilton. Plaintiff complained that he was not receiving treatment

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specifically for his Post-Traumatic Stress Disorder, but admitted that he had received treatment

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John Doe is a fictitious name.
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for his depression and anxiety. The Court found that Plaintiff’s allegations amounted at most to

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a difference of opinion between a doctor and patient regarding a proper course of treatment,

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which fails to state an Eighth Amendment claim. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th

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Cir. 2006) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). The Court also found

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that Plaintiff failed to state a claim against Defendants Chief of Psychiatric Services, D. Trinh,

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Nayla Syed, and J. Acosta for the same reasons.

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Regarding Defendant Campos, on September 9, 2009, the Court directed the United

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States Marshal (“Marshal”) to effect service of process on Defendant Julio Campos. On January

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25, 2010, the Marshal returned the complaint and summons unexecuted. The USM-285 form

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indicated that Defendant Campos was no longer employed by CDCR or Kern Valley State

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Prison. On February 2, 2011, the Court directed the Marshal to re-attempt service on Defendant

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Campos, and to contact the litigation office of CDCR for assistance if necessary. The Marshal

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attempted to serve Defendant Campos at his last known home address, but the home was

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unoccupied, and no forwarding address was available. On July 11, 2011, the Marshal returned the

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summons unexecuted.

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Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure,

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If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff - must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.

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The Court found no good cause to further extend the time for service. The Marshal twice

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attempted to serve Defendant Campos, once at his last known home address. The Marshal acted

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diligently in their responsibilities. Plaintiff did not provide sufficient information for the Marshal

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to effect service. Dismissal of Defendant Campos was appropriate.

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Accordingly, Plaintiff’s appeal is not taken in good faith, and is frivolous. Plaintiff’s in
forma pauperis status is HEREBY ORDERED revoked for purposes of his appeal.
IT IS SO ORDERED.
Dated:

August 5, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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