Jackson v. Dumanis et al

Filing 13

ORDER Directing U.S. Marshal To Effect Service Of Amended Complaint Pursuant To Fed.R.Civ.P. 4(c)(3) & 28 U.S.C. Section 1915(d): The Clerk shall issue a summons as to Plaintiff's Second Amended Complaint (Doc. 12 ). Signed by Judge William Q. Hayes on 6/27/2011. (All non-registered users served via U.S. Mail Service; IFP package prepared, including all documents indicated in the Order.) (mdc) (jcj).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD EDWARD JACKSON,

Civil No.

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Plaintiff,

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vs.

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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)

BONNIE DUMANIS; WILLIAM D.
GORE; CAPTAIN PENA; DR.
NORANYO; COUNTY OF SAN DIEGO,
Defendants.

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Plaintiff, Richard Edward Jackson, proceeding pro se and in forma pauperis (“IFP”), has

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filed a civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s

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Second Amended Complaint [ECF No. 12].

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I.

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

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A.

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The Prison Litigation Reform Act (“PLRA”) obligates the Court to review complaints

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filed by all persons proceeding IFP and by those who are “incarcerated or detained in any facility

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[and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

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terms or 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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Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte

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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is

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frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319,

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324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing

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an IFP or prisoner’s suit make and rule on its own motion to dismiss before effecting service of

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the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 (“[S]ection

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1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint

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that fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

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(discussing 28 U.S.C. § 1915A).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the

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plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s

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duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept.,

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839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

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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) (“The officers of the court shall issue and serve all process, and perform all duties in

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[IFP] cases.”); FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a United

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States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis

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under 28 U.S.C. § 1915.”). Plaintiff is cautioned, however, that “the sua sponte screening and

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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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II.

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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. 12] 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 January 19, 2011 Order granting Plaintiff leave to

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proceed IFP [ECF No. 9], and certified copies of his Second Amended Complaint and the

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summons for purposes of serving each Defendant. Upon receipt of this “IFP Package,” Plaintiff

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

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

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

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

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Form 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: June 27, 2011

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WILLIAM Q. HAYES
United States District Judge

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