Talley v. Neotti et al

Filing 14

ORDER Directing U.S. Marshal to effect service of Second Amended Complaint Pursuant to FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d). (USM service package sent) Signed by Judge Barry Ted Moskowitz on 9/6/11.(All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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PERRY TALLEY,
CDCR #D-91162,

Civil No.
Plaintiff,

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10cv0426 BTM (JMA)

ORDER DIRECTING U.S.
MARSHAL TO EFFECT SERVICE
OF SECOND AMENDED
COMPLAINT PURSUANT
TO FED.R.CIV.P. 4(c)(3)
& 28 U.S.C. § 1915(d)

vs.
GEORGE NEOTTI; S. PAULEY;
RATHERFUR; J. WALKER; SPENCER;
JOHN DOE NURSE; JOHN DOE
PHYSICIAN
Defendants.

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I.

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PROCEDURAL HISTORY

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On February 23, 2010, Plaintiff, Perry Talley, a state prisoner currently incarcerated at

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Kern Valley State Prison located in Delano, California and proceeding pro se, filed a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff alleged that his Eighth Amendment rights were

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violated when he was housed at the Richard J. Donovan Correctional Facility (“Donovan”).

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Plaintiff also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a). The Court has granted Plaintiff’s Motion to Proceed IFP but has also sua sponte

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dismissed his original and First Amended Complaint for failing to state a claim. See May 3,

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2010 Order; see also August 3, 2010 Order.
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On June 27, 2011, after receiving an extension of time. Plaintiff has now filed his Second
Amended Complaint.

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II.

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SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A

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A.

Standard

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The PLRA also obligates the Court to review complaints filed by all persons proceeding

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IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused

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of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

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conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

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provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion

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thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from

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defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A; Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443,

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446 (9th Cir. 2000) (§ 1915A).

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The Court finds that Plaintiff’s claims are now sufficiently pleaded to survive the sua

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sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is

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entitled to U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C.

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§ 1915(d); FED.R.CIV.P. 4(c)(3). Plaintiff is cautioned, however, that “the sua sponte screening

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and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6)

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motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119

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(S.D. Cal. 2007).

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III.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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The Clerk shall issue a summons as to Plaintiff’s Second Amended Complaint

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[ECF No.13] upon Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal

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Form 285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff with a

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certified copy of this Order, the Court’s May 3, 2010 Order granting Plaintiff leave to proceed

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IFP [ECF No.4], and certified copies of his Second Amended Complaint and the summons for

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purposes of serving each Defendant. Upon receipt of this “IFP Package,” Plaintiff is directed

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to complete the Form 285s as completely and accurately as possible, and to return them to the

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United States Marshal according to the instructions provided by the Clerk in the letter

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accompanying his IFP package. Thereafter, the U.S. Marshal shall serve a copy of the Second

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Amended Complaint and summons upon each Defendant as directed by Plaintiff on each Form

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285. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d);

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FED.R.CIV.P. 4(c)(3).

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2.

Plaintiff shall serve upon Defendants or, if appearance has been entered by

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counsel, upon Defendants’ counsel, a copy of every further pleading or other document

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submitted for consideration of the Court. Plaintiff shall include with the original paper to be

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filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy

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of any document was served on Defendants, or counsel for Defendants, and the date of service.

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Any paper received by the Court which has not been filed with the Clerk or which fails to

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include a Certificate of Service will be disregarded.

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IT IS SO ORDERED.
DATED: September 6, 2011

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Honorable Barry Ted Moskowitz
United States District Judge

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