James v. Lee et al

Filing 50

ORDER Dismissing Claims and Defendants for Failing to State a Claim; Directing U.S. Marshal Service to Effect Service of Fourth Amended Complaint on Remanding Defedants. Signed by Judge Anthony J. Battaglia on 2/12/2018.(All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 KYLE ROBERT JAMES, Booking # 17181154, Case No.: 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJBMDD Plaintiff, 13 vs. 14 ORDER: (1) DISMISSING CLAIMS AND DEFENDANTS FOR FAILING TO STATE A CLAIM; AND (2) DIRECTING U.S. MARSHAL SERVICE TO EFFECT SERVICE OF FOURTH AMENDED COMPLAINT ON REMAINING DEFENDANTS 15 16 BARBARA LEE, et al. Defendants. 17 18 19 20 21 22 23 I. Procedural History On June 21, 2016, Plaintiff, Kyle James, currently housed at the George Bailey 24 Detention Facility located in San Diego, California, filed a civil rights Complaint 25 pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Motion to Proceed In Forma Pauperis 26 (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Because Plaintiff’s Motion to 27 Proceed IFP complied with 28 U.S.C. § 1915(a)(2), the Court granted him leave to 28 proceed without full prepayment of the civil filing fees required by 28 U.S.C. § 1914(a), 1 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 but dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. 2 § 1915(e)(2) and § 1915A(b). On November 16, 2016, Plaintiff filed his First Amended 3 Complaint (“FAC”). (ECF No. 6.) In this FAC, Plaintiff named only Defendant Barbara 4 Lee, John Doe Doctor, Jane Doe Doctor and “S.D.C.J. Med. Supervisor” as Defendants. 5 The Court, once again, dismissed Plaintiff’s FAC on the grounds that he failed to 6 state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF 7 No. 8.) On March 30, 2017, Plaintiff filed his Second Amended Complaint (“SAC”). In 8 his SAC, Plaintiff again named Barbara Lee as a Defendant but also added Defendants 9 Kania and Harvel. The Court, again, dismissed Plaintiff’s SAC as frivolous and for 10 failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF No. 11 10.) Plaintiff filed his Third Amended Complaint (“TAC”) on September 13, 2017 but 12 13 later requested that the Court strike this pleading and sought leave to file a Fourth 14 Amended Complaint. (ECF No. 30.) On October 27, 2017, this Court ordered that the 15 matter of James v. Gore, et el., S.D. Cal. Civil Case No. 3:17-cv-0-859-AJB-MDD be 16 consolidated with this action. Plaintiff was directed to file a Fourth Amended Complaint 17 in this action that stated “all claims, defendants, facts, evidence, and theories [Plaintiff] 18 would like to bring in this case.” (ECF No. 41 at 2.) On December 26, 2017, Plaintiff 19 filed his Fourth Amended Complaint (“4thAC”). (ECF No. 43.) 20 II. 21 22 Legal Standards for Screening Complaint Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) Because Plaintiff is a prisoner and is proceeding IFP, his Fourth Amended 23 Complaint requires a pre-Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 24 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP 25 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or 26 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 27 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 28 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 2 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need 2 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 3 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 4 2012)). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 8 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 9 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 12 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 15 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 17 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 18 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 19 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 20 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 21 (9th Cir. 2009). 22 A. 23 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 42 U.S.C. § 1983 24 privileges, or immunities secured by the Constitution and laws” of the United States. 25 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must 26 allege two essential elements: (1) that a right secured by the Constitution or laws of the 27 United States was violated, and (2) that the alleged violation was committed by a person 28 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 3 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD Plaintiff’s factual allegations 1 B. 2 On July 3, 2014, Plaintiff was housed as a pretrial detainee at the George Bailey 3 Detention Facility (“GBDF”). (See 4thAC at 7.) Plaintiff alleges Defendant Kania 4 “ordered deputies to hog-tie me naked and transport me to San Diego Central Jail 5 (“SDCJ”).” (Id.) Plaintiff claims Kania ordered this to “punish” Plaintiff because 6 Plaintiff was “in possession of hand-cuff keys.” (Id.) 7 Plaintiff alleges he was then handcuffed behind his back but the handcuffs were 8 “too tight.” (Id.) Plaintiff told unnamed deputies that the handcuffs were too tight but 9 “they would not loosen the cuffs because Kania would not allow it.” (Id.) As a result, 10 Plaintiff claims this caused him “severe pain” in his “hands and wrists.” (Id.) Plaintiff 11 cried “due to the pain lasting [one] hour or so.” (Id.) Deputies placed Plaintiff “faced 12 down” and “strapped” on a gurney. (Id.) Plaintiff alleges that the “restraint devices” used caused “permanent nerve 13 14 damage” to his “hands, wrists, and forearms.” (Id.) Plaintiff claims he suffers from 15 “severe chronic pain” which has caused him to lose “mobility/function of hands.” (Id.) 16 Plaintiff was “x-rayed” and the handcuff “keys were found.” (Id. at 9.) However, 17 Plaintiff claims he did not possess any other “contraband.” (Id.) Plaintiff alleges that 18 Kania’s alleged refusal to clothe Plaintiff before he was transported was “malicious.” 19 (Id.) Plaintiff claims six unnamed deputies “carried me outside like a naked hogtied pig 20 on its way to be barbequed.” (Id.) 21 When Plaintiff arrived at the SDCJ, he claims Kania told the SDCJ deputies that 22 Plaintiff was “violent and an escape risk.” (Id. at 10.) Plaintiff denies that he is a 23 “violent criminal.” (Id.) Plaintiff states that he was subjected to a policy known as 24 “DRC”1 which he claims is an “abuse of discretion, irrational, arbitrarily imposed, 25 26 27 28 Plaintiff does not specifically indicate what “DRC” represents but based on the exhibits attached to his Fourth Amendment Complaint, it appears to be a policy by the San Diego County Sheriff’s Department to require a detainee to wear “leg and waist chains” when they are in the “Day Room” if the 1 4 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 oppressive, depressing, psychologically damaging, painful and injurious practice.” (Id. at 2 11.) Plaintiff claims this caused him injury by “cutting off circulation” and “destroying” 3 the nerves in his “wrists, hands, and forearms.” (Id.) 4 Plaintiff claims Defendants Barbara Lee and Christine Harvel “acted with 5 deliberate indifference” to his claims of “constant pain and injury caused by DRC.” (Id.) 6 Plaintiff alleges that “no treatment was ever provided.” (Id. at 11-12.) 7 Plaintiff claims Defendants Coyne, Snyder, Kamass, Montgomery, Pena and Flynn 8 “did not have justification” for use of “DRC” and the use of “DRC” was in “retaliation 9 for filing 18 months of complaints against defendants in this action.” (Id. at 12.) 10 Plaintiff alleges he “fell down the stairs in Central Jail” and threatened “to sue them to 11 finally make Central Jail admin discontinue use of DRC.” (Id. at 13.) 12 After Plaintiff fell, he alleges that x-rays were taken at the SDCJ and SDCJ 13 officials, “with the help of x-ray tech and Doctor Blake attempted to cover-up this injury 14 out of fear of being sued.” (Id.) Plaintiff alleges that they “lied claiming ‘no injury’” but 15 when Plaintiff was later housed with the California Department of Corrections and 16 Rehabilitation (“CDCR”), it was discovered that he had injured his spine. (Id.) Plaintiff 17 claims Defendant Blake evaluated him by “looking through” Plaintiff’s cell window and 18 stating “you’re fine, nothing’s wrong with you.” (Id. at 14.) Plaintiff alleges Defendant 19 Blake “refused to adequately examine and treat the permanent nerve damage.” (Id.) 20 Plaintiff claims he could not turn his neck or “get out of bed without painful effort.” (Id.) 21 Plaintiff further claims that Defendant Blake called Plaintiff a “liar” and denied Plaintiff 22 suffered from “neurogenic pain.” (Id.) 23 On July 23, 2014, Plaintiff was returning from court and was placed in a “2nd floor 24 holding cell waiting for an x-ray tech.” (Id. at 16.) Plaintiff alleges that deputies left him 25 in a “cross-cuff” position in violation of policy and the handcuffs were “tight and not 26 27 28 detainee has been given a “high risk classification.” (See 4thAC, ECF No. 43 at 32, “Citizens’ Law Enforcement Review Board Final Report Case No. 15-119.”) 5 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 double locked.” (Id.) Plaintiff told unnamed deputies that he was in “extreme pain” but 2 one of the deputies walked by his cell and told Plaintiff “that’s what you get for sticking 3 locks and keys up your ass.” (Id.) “Out of desperation,” Plaintiff “kicked the door 4 screaming and they ignored” him. (Id.) Plaintiff then “slammed [his] forehead 5 repeatedly into the window” until he began to bleed. (Id.) Sergeant Blackwell2 and a “John Doe Lieutenant” pulled Plaintiff out of his cell 6 7 and escorted him to the nurse. (Id.) Plaintiff claims that when they removed his 8 handcuffs, his wrists were bleeding. (See id.) He further alleges that the nurse “tended to 9 my wounds.” (Id.) Plaintiff submitted an internal affairs complaint and claims 10 Defendant Harvel “admitted the cuffs were too tight.” (Id.) However, Plaintiff claims 11 Harvel “lied falsely stating the cuffs were loosened soon as [they were] found to be too 12 tight.” (Id. at 17.) Harvel is also alleged to have “covered up misconduct” and failed to 13 preserve “video evidence.” (Id.) 14 Finally, Plaintiff alleges Defendant Lee and various unnamed Defendants he 15 identifies as “John/Jane Doe Medical Admin Review Committee,” were deliberately 16 indifferent to his serious medical needs. (Id. at 20-21.) Specifically, Plaintiff alleges that 17 he was prescribed ibuprofen which he claims was insufficient to overcome his pain. (Id.) 18 Plaintiff alleges that unnamed medical personnel told him that the Sheriff’s medical 19 policy “prevented them from adequately treating [his] chronic neuropathic pain.” (Id. at 20 20.) 21 C. 22 Plaintiff claims that Defendants Kania, Harvel and unnamed Sheriff Deputies used Fourteenth Amendment excessive force claims 23 excessive force on him when he was placed in handcuffs and other restraints on two 24 separate occasions. While the Court does find that Plaintiff has alleged facts sufficient to 25 state a claim as to Defendant Kania, as well as the unnamed Sheriff Deputies, the Court 26 27 28 2 Blackwell is not a named Defendant. 6 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 finds that Plaintiff has failed to allege facts sufficient to state a Fourteenth Amendment 2 excessive force claim against Defendant Harvel, Coyne, Snyder, Kamass, Montgomery, 3 Pena or Flynn. 4 Specifically, Plaintiff alleges that Defendant Harvel lied, after the incident 5 occurred, when she reported in response to his internal affairs complaint that the “cuffs 6 were loosened as [they were] found to be too tight.” (4th AC at 17.) However, Plaintiff 7 does not allege that Harvel was at any time actually involved in the incidents in which he 8 claims excessive force was used. Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct. 2466, 9 2473 (2015) (“[T]he Due Process Clause protects a pretrial detainee from the use of 10 excessive force that amounts to punishment.”) (citing Graham v. Connor, 490 U.S. 386, 11 395 n.10 (1989)). Under Kingsley, a pretrial detainee, unlike a convicted prisoner, need 12 not prove that the defendant subjectively knew that the force applied was excessive; that 13 state-of-mind inquiry is “solely ... objective.” Id. at 2473; Austin v. Baker, 616 F. App’x 14 365, 366 (9th Cir. 2015); see also Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (When 15 prison officials stand accused of using excessive force in violation of the Eighth 16 Amendment, the core judicial inquiry is “... whether force was applied in a good-faith 17 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”). 18 Here, he only alleges that Harvel was involved after the incident was over and thus, 19 Harvel is not alleged to have used any force against Plaintiff or directed that any force be 20 used against Plaintiff. 21 As to Defendants Coyne, Snyder, Kamass, Montgomery, Pena and Flynn, 22 Plaintiff’s only allegations are that they did not have “justification for use” of restraints 23 on Plaintiff while he was in the “day room.” (4thAC at 12.) There are no allegations that 24 there was force used in the manner in which these restraints were applied, only that 25 Plaintiff objected to the use of restraints under these circumstances. A pretrial detainee’s 26 excessive force claim “may proceed,” if they can show “the use of force is deliberate.” 27 Kinglsey, __ U.S. __, 135 S.Ct. at 2472. Here, Plaintiff does not allege any facts that any 28 of these Defendants directly used force on Plaintiff. 7 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 Accordingly, while the Court finds that Plaintiff has alleged facts sufficient to state 2 an excessive force claim against Defendant Kania and the unnamed Sheriff Deputy 3 Defendants, the Court finds that the claims against Defendant Harvel, Coyne, Snyder, 4 Kamass, Montgomery, Pena and Flynn must be DISMISSED for failing to state an 5 excessive force claim. 6 D. 7 Plaintiff also purportedly brings a Fourteenth Amendment failure to protect claim Fourteenth Amendment failure to protect claims 8 against the same Defendants based on the same set of facts alleged as a Fourteenth 9 Amendment excessive force claim. However, Plaintiff claims that Defendants “failed to 10 protect” him from other jail officials. The Ninth Circuit recently explained that that an 11 excessive force claim arises from “force applied directly by an individual jailer” while a 12 failure to protect claim arises from “force applied by a fellow inmate.” Castro v. County 13 of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) Here, Plaintiff is alleging the use of 14 force by Sheriff Deputies, not other inmates or detainees. Thus, the Court DISMISSES 15 Plaintiff’s Fourteenth Amendment failure to protect claims. 16 E. 17 Plaintiff claims that his “right to free speech and to petition the government for 18 redress of grievances” was violated by “Central Jail admin, defendant Lieutenants and 19 Captains.” (4thAC at 13.) Retaliation against a prisoner for exercising his rights to 20 speech or to petition the government may violate the First Amendment. See Rizzo v. 21 Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 22 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within 23 the prison context, a viable claim of First Amendment retaliation entails five basic 24 elements: (1) An assertion that a state actor took some adverse action against an inmate 25 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 26 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 27 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 28 Cir. 2005). Retaliation claims 8 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 In this matter, Plaintiff does not set forth specific facts to link individual 2 Defendants to his claims of retaliation. In fact, Plaintiff argues that by threatening to sue 3 unnamed individuals it “finally made Central Jail admin discontinue use of DRC.” 4 (4thAC at 13.) Plaintiff is alleging that a positive action, rather than an adverse action, 5 was taken in response to his exercising his First Amendment rights. Thus, Plaintiff has 6 not alleged any facts to support a retaliation claim. Moreover, the “mere possibility of 7 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall 8 short of meeting Iqbal’s plausibility standard. Iqbal, 556 U.S. at 678. Therefore, 9 Plaintiff’s claims of retaliation are DISMISSED for failing to state a claim. 10 F. 11 Plaintiff alleges Defendants Blake and Lee were deliberately indifferent to his Medical Care Claims 12 serious medical needs. The Court finds that Plaintiff has alleged factual content 13 sufficient to survive the “low threshold” for proceeding past the sua sponte screening 14 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), because it alleges inadequate medical 15 care claims against Blake and Lee which are plausible on its face. See Wilhelm, 680 F.3d 16 at 1123; Iqbal, 556 U.S. at 678. 17 However, to the extent that Plaintiff seeks to hold unnamed Doe Defendants and 18 supervisory medical officials including, UCSD Doctor No. 1, UCSD Doctor No. 2, 19 UCSD Doctor No. 3, Doctor Joshua, Jane Doe X-Ray technician, John/Jane Doe Medical 20 Admin Review Committee Members liable in this matter, the Court finds that these 21 Defendants must be dismissed. 22 Plaintiff does not allege, with any specific facts, that these Defendants had any 23 actual knowledge of Plaintiff’s medical condition or were actively participating in his 24 medical care. “The inquiry into causation must be individualized and focus on the duties 25 and responsibilities of each individual defendant whose acts or omissions are alleged to 26 have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 27 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 28 457, 460 (9th Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 9 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 1999) (“Causation is, of course, a required element of a § 1983 claim.”) A person 2 deprives another “of a constitutional right, within the meaning of section 1983, if he does 3 an affirmative act, participates in another’s affirmative acts, or omits to perform an act 4 which he is legally required to do that causes the deprivation of which [the plaintiff 5 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not 6 stated a claim against any of these Defendants because he has failed to allege facts 7 regarding what actions were taken or not taken by these Defendants which caused the 8 alleged constitutional violations. 9 III. Conclusion and Order 10 Good cause appearing, the Court: 11 1. DISMISSES all claims against each Defendant with the exception of 12 Defendants Lee, Kania, Blake, John/Jane Doe Lieutenant and John Doe Central Jail 13 Deputies for failing to state a claim upon which § 1983 relief can granted pursuant to 28 14 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 15 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s Fourth Amended 16 Complaint (ECF No. 43) and forward it to Plaintiff along with a blank U.S. Marshal 17 Form 285 for Defendants Lee, Kania, Blake, John/Jane Doe Lieutenant and John Doe 18 Central Jail Deputies3. In addition, the Clerk will provide Plaintiff with a certified copy of 19 20 21 22 23 24 25 26 27 28 Plaintiff must, of course, identify the Defendants he lists only as “John/Jane Does” by their true names and substitute those individual persons in place of each unnamed Doe by amending his pleading to identify each of those parties before the United States Marshal will be able to execute service upon them. See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must be identified and served within [90] days of the commencement of the action against them); Fed. R. Civ. P. 15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). It is in most instances impossible for the United States Marshal to serve a party identified only as a Doe. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to identify the defendant.”). However, the Court will not dismiss Plaintiff’s claims against the Doe Defendants at this time because where the identity of an 3 10 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 this Order, a certified copy of his Fourth Amended Complaint, and the summons so that 2 he may serve Defendants Lee, Kania, Blake, John/Jane Doe Lieutenant and John Doe 3 Central Jail Deputies. Upon receipt of this “IFP Package,” Plaintiff must complete the 4 Form 285 as completely and accurately as possible, include an address where Defendants 5 Lee, Kania, Blake, John/Jane Doe Lieutenant and John Doe Central Jail Deputies may 6 be found and/or subject to service, and return it to the United States Marshal according to 7 the instructions the Clerk provides in the letter accompanying his IFP package; 8 9 3. ORDERS the U.S. Marshal to serve a copy of the Fourth Amended Complaint and summons upon Defendants Lee, Kania, Blake, John/Jane Doe Lieutenant 10 and John Doe Central Jail Deputies as directed by Plaintiff on the USM Form 285 11 provided to him. All costs of that service will be advanced by the United States. See 28 12 U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3); 13 4. ORDERS Defendants Lee, Kania, Blake, John/Jane Doe Lieutenant and 14 John Doe Central Jail Deputies to reply to Plaintiff’s Fourth Amended Complaint within 15 the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 16 See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive 17 the right to reply to any action brought by a prisoner confined in any jail, prison, or other 18 correctional facility under section 1983,” once the Court has conducted its sua sponte 19 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a 20 preliminary determination based on the face on the pleading alone that Plaintiff has a 21 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 22 23 24 25 26 27 28 alleged party is not known prior to filing of an action, Ninth Circuit authority permits Plaintiff the opportunity to pursue appropriate discovery to identify the unknown Does, unless it is clear that discovery would not uncover their identity, or his Complaint should be dismissed for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642). 11 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD 1 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 2 serve upon Defendants Lee, Kania, Blake, John/Jane Doe Lieutenant and John Doe 3 Central Jail Deputies, or, if appearance has been entered by counsel, upon Defendants’ 4 counsel, a copy of every further pleading, motion, or other document submitted for the 5 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 6 original document he seeks to file with the Clerk of the Court, a certificate stating the 7 manner in which a true and correct copy of that document has been was served on 8 Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. Any 9 document received by the Court which has not been properly filed with the Clerk or 10 which fails to include a Certificate of Service upon Defendants Lee, Kania, Blake, 11 John/Jane Doe Lieutenant and John Doe Central Jail Deputies, or their counsel, may be 12 disregarded. 13 14 IT IS SO ORDERED. Dated: February 12, 2018 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 3:16-cv-01592-AJB-JLB consolidated with 3:17-cv-00859-AJB-MDD

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