Thomas v. Hernandez et al

Filing 10

ORDER Directing U.S. Marshal to Effect Service of Amended Complaint Pursuant to FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d). Signed by Judge Larry Alan Burns on 11/9/09. (IFP Package mailed to Plaintiff)(pdc) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. P ROCEDURAL HISTORY O n June 19, 2009, Timothy Thomas, a state prisoner proceeding pro se, filed a civil a c tio n pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff filed a Motion to Proceed In Forma P a u p e ris ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2], along with a Motion for Leave to Amend [Doc. No. 3]. The Court granted Plaintiff's Motion to Proceed IFP and granted P la in tif f 's Motion for Leave to File a First Amended Complaint. See July 29, 2009 Order at 3-4. O n August 24, 2009, Plaintiff filed his First Amended Complaint ("FAC"). /// /// 1
09cv1336 LAB (PCL)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
T I M O T H Y THOMAS, C D C R #E-91948, P la in tif f , Civil No. 09-1336 LAB (PCL)

vs. R . HERNANDEZ; ROBERTS N E L S O N ; IRRAZUSTA; D e f e n d a n ts .

O R D E R DIRECTING U.S. MARSHAL TO EFFECT S E R V I C E OF AMENDED C O M P L A IN T PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d)

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II.

S UA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) and § 1915A T h e Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints

f ile d by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of cr im in a l law or the terms or conditions of parole, probation, pretrial release, or diversionary p ro g ra m ," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). U n d e r these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any p o rtio n thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages f ro m defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 2 0 3 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 4 4 3 , 446 (9th Cir. 2000) (§ 1915A). B e f o re amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte d i sm is s a l of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is f riv o lo u s if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 3 2 4 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing a n IFP or prisoner's suit make and rule on its own motion to dismiss before effecting service of th e Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1 9 1 5 (e ) not only permits, but requires a district court to dismiss an in forma pauperis complaint th a t fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discu ssin g 28 U.S.C. § 1915A). " [ W ]h e n determining whether a complaint states a claim, a court must accept as true all a lle g a tio n s of material fact and must construe those facts in the light most favorable to the p la in ti f f ." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "p ara llels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's d u ty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 8 3 9 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. B o n z e le t, 963 F.2d 1258, 1261 (9th Cir. 1992). /// 2

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T h e Court finds that Plaintiff's Eighth Amendment claims are sufficiently pleaded to s u rv iv e the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, P la in tif f is entitled to U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U . S . C . § 1915(d) ("The officers of the court shall issue and serve all process, and perform all d u ties in [IFP] cases."); FED.R.CIV.P. 4(c)(3) ("[T]he court may order that service be made by a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma p a u p e ris under 28 U.S.C. § 1915."). Plaintiff is cautioned, however, that "the sua sponte sc re e n in g and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 1 2 (b )(6 ) motion that [a defendant] may choose to bring." Teahan v. Wilhelm, 481 F. Supp. 2d 1 1 1 5 , 1119 (S.D. Cal. 2007). I I I. C ONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. T h e Clerk shall issue a summons as to Plaintiff's First Amended Complaint [Doc.

N o . 8] upon Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 2 8 5 for each of these Defendants. In addition, the Clerk shall provide Plaintiff with a certified c o p y of this Order, the Court's July 29, 2009 Order granting Plaintiff leave to proceed IFP [Doc. N o . 6], and certified copies of his First Amended Complaint and the summons for purposes of se rv in g each Defendant. Upon receipt of this "IFP Package," Plaintiff is directed to complete th e Form 285s as completely and accurately as possible, and to return them to the United States M a rs h a l according to the instructions provided by the Clerk in the letter accompanying his IFP p a c k ag e . Thereafter, the U.S. Marshal shall serve a copy of the First Amended Complaint and s u m m o n s upon each Defendant as directed by Plaintiff on each Form 285. All costs of service s h a ll be advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 2. D e fe n d a n ts are thereafter ORDERED to reply to Plaintiff's First Amended

C o m p lain t within the time provided by the applicable provisions of Federal Rule of Civil P ro c e d u re 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to "waive the right to reply to any action brought by a prisoner confined in any jail, prison, or o th e r correctional facility under section 1983," once the Court has conducted its sua sponte 3

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scre en in g pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary d e ter m in a tion based on the face on the pleading alone that Plaintiff has a "reasonable o p p o rtu n ity to prevail on the merits," Defendants are required to respond). 3. P la in tiff shall serve upon Defendants or, if appearance has been entered by

c o u n se l, upon Defendants' counsel, a copy of every further pleading or other document s u b m itte d for consideration of the Court. Plaintiff shall include with the original paper to be file d with the Clerk of the Court a certificate stating the manner in which a true and correct copy o f any document was served on Defendants, or counsel for Defendants, and the date of service. A n y paper received by the Court which has not been filed with the Clerk or which fails to in c lu d e a Certificate of Service will be disregarded. D A T E D : November 9, 2009

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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