McCullough v. Shasta County et al

Filing 7

ORDER signed by Magistrate Judge Dennis M. Cota on 10/4/19 ORDERING that service of the complaint is appropriate for defendants Shasta County and Tom Bosenko. The Clerk of the Court shall send plaintiff two USM-285 forms and serve a copy of this order on the United States Marshal. (cc:USM) (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAVANAH McCULLOUGH,

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No. 2:19-CV-1739-TLN-DMC

Plaintiff,
v.

ORDER

SHASTA COUNTY, et al.,

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Defendants.

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Plaintiff, who is proceeding with retained counsel, brings this civil action.

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Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this screening

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provision, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious;

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(2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a

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defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(A), (B). Moreover,

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pursuant to Federal Rule of Civil Procedure 12(h)(3), this court must dismiss an action if the court

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determines that it lacks subject matter jurisdiction. Because plaintiff has been granted leave to

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proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant

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to Rule 12(h)(3), the court will also consider as a threshold matter whether it has subject-matter

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jurisdiction.
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Plaintiff names the following as defendants: (1) Shasta County; and (2) Tom

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Bosenko, the Shasta County Sheriff. See ECF No. 1, pg. 1. Plaintiff asserts subject matter

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jurisdiction under 42 U.S.C. § 1983. See id. at 2. Plaintiff alleges that she was an inmate at the

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Shasta County Jail during all times relevant to the complaint. See id. Plaintiff outlines the

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following factual allegations:

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1.
Plaintiff was taken into custody on August 6, 2018,
pursuant to a warrant for failure to appear in the Shasta County Superior
Court.

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2.
Upon booking, she was given a medical examination
during which time plaintiff provided medical personnel a detailed history
of her medical condition including specific information regarding
plaintiff’s seizure disorder which required her to medicate daily with 900
mg of Tegretol.

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3.
Following her incarceration, plaintiff was denied access to
her seizure medication and began developing a series of sequential
seizures that led to her developing a comatose condition requiring plaintiff
to be transported to Redding Medical Center and admitted to the intensive
care unit for two weeks.

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Id. at 3.

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According to plaintiff: “[T]he defendants and their employees took virtually no action to carry out

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the administration of appropriate medication to plaintiff. . . .” id.

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On the limited record currently before the court, it does not appear that the action

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is frivolous or malicious or that plaintiff seeks relief from an immune defendant. Nor does it

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appear that plaintiff fails to state a claim upon which relief may be granted.1 The court, therefore,

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concludes that it has subject matter jurisdiction and that the complaint is appropriate for service

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by the United States Marshal without pre-payment of costs. If plaintiff desires service of process

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by the United States Marshal without pre-payment of costs, plaintiff must comply with the

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requirements outlined below. Plaintiff is warned that failure to comply with this order, or

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otherwise effect service pursuant to Federal Rule of Civil Procedure 4, may result in dismissal of

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the action for lack of prosecution and failure to comply with court rules and orders. See Local

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Rule 110.

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This finding does not preclude defendants from appropriately challenging
plaintiff’s complaint.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

Service of the complaint is appropriate for defendants Shasta County and

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2.

The Clerk of the Court shall send plaintiff two USM-285 forms;

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3.

Within 30 days from the date of this order, plaintiff shall submit to the

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Tom Bosenko;

United States Marshal at the address indicated below the following documents:

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a.

The completed summons issued on September 11, 2019;

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b.

One completed USM-285 form for each named defendant;

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c.

Three copies of the complaint; and

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d.

Two copies of the court’s initial scheduling order and related

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documents issued on September 11, 2019;

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4.

Within 10 days after submitting the required documents to the United

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States Marshal, plaintiff shall file a notice indicating that the documents described above have

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been submitted to the United States Marshal, or a notice that plaintiff intends to serve the

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summons and complaint without assistance from the United States Marshal;

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5.

If plaintiff seeks the assistance of the United States Marshal, the United

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States Marshal is directed to serve all process without pre-payment of costs not later than 90 days

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from the date receipt of the required documents, such service of process to be completed by

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serving a copy of the summons, complaint, and initial scheduling order on the defendants at the

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addresses provided by plaintiff;

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6.

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United States Marshal at 501 “I” Street, Sacramento, CA, 95814; and

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The Clerk of the Court is directed to serve a copy of this order on the

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This matter is referred back to the assigned District Judge for all future

proceedings.

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Dated: October 4, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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