Dragasits v. Yu, et al

Filing 5

ORDER: (1) Granting 3 Motion for Leave to Proceed in forma pauperis; (2) Dismissing Claims and Defendants for Failing to State a Claim and for Seeking Monetary Damages Against Immune Defendants; and (30 Directing US Marshal to effect service of S ummons and Complaint on Remaining Defendants. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Roger T. Benitez on 11/15/2016. (All non-registered users served via U.S. Mail Service)(knb)

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1 2 mm is 3 ph 3:10 .mm* us mmmi «««| sfitlisiH 6wts;®t ef &A§mmi 4 *v. JSS©W 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 STEPHEN DRAGASITS, CDCR #AX-5810, ORDER: Plaintiff, 13 14 Case No.: 3:16-cv-01998-BEN-JLB (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Docket No. 3] vs. 15 16 17 18 19 STATE OF CALIFORNIA; RJDCF; CLARK KELSO; DR. JIN YU; DR. R. WALKER; DR. S. ROBERTS; M. GLYNN; DR. DAVID GULDOETH; J. LEWIS; D. VAN BUREN; DOES 1-10, (2) DISMISSING CLAIMS AND DEFENDANTS FOR FAILING TO STATE A CLAIM AND FOR SEEKING MONETARY DAMAGES AGAINST IMMUNE DEFENDANTS [Docket No. 1]; Defendants. 20 3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SUMMONS AND COMPLAINT ON REMAINING DEFENDANTS 21 22 23 24 25 Stephen Dragasits (“Plaintiff’), a prisoner incarcerated at Richard J. Donovan 26 Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a 27 Civil Rights Complaint pursuant to 42 U.S.C. § 1983. (Docket No. 1.) Plaintiff claims 28 the State of California, several RJD health care officials, and a Deputy Director of the l 1 • 1 fi-r.v-01QQR-RFN-TT R 1 CDCR’s Health Care Services Appeals Branch, denied his Eighth and Fourteenth 2 Amendment rights to medical treatment and due process while he has been incarcerated 3 at RJD. Additionally, Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”). 4 (Docket No. 3.) 5 I. Plaintiffs Motion to Proceed IFP 6 All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiffs failure to 9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 10 § 1915(a). See Andrews v. Cervantes. 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 11 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 12 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 13 Bruce v. Samuels, 14 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 15 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore. 281 F.3d 844, 847 (9th Cir. 16 2002). U.S. _, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 17 18 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 19 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 20 § 1915(a)(2); Andrews v. King, 398 F.3d 1113,1119 (9th Cir. 2005). From the certified 21 trust account statement, the Court assesses an initial payment of 20% of (a) the average 22 monthly deposits in the account for the past six months, or (b) the average monthly 23 balance in the account for the past six months, whichever is greater, unless the prisoner 24 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 25 26 27 28 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. i 2 • 16-r.v-n 1Q98-RKM-TT R 1 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 2 preceding month’s income, in any month in which his account exceeds $10, and forwards 3 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 4 1915(b)(2); Bruce. 136 S. Ct. at 629. In support of his IFP motion, Plaintiff has submitted a certified copy of his prison 5 6 trust account statements, as well as a prison certificate, pursuant to 28 U.S.C. 7 § 1915(a)(2) and S.D. Cal. CrvLR 3.2. Andrews. 398 F.3d at 1119. These statements 8 shows that Plaintiff had an available balance of zero at the time of filing. Therefore, the 9 Court assesses no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). However, 10 the Court directs the Secretary of the California Department of Corrections and 11 Rehabilitation (“CDCR”), or his designee, to instead collect the entire $350 balance of 12 the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court 13 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 14 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A 15 A. Standard of Review 16 Notwithstanding Plaintiffs IFP status or the payment of any filing fees, the PLRA 17 also requires the Court to review complaints filed by all persons proceeding IFP and by 18 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 19 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 20 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 21 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 22 statutes, the Court must sua sponte dismiss any complaint, or any portion of a complaint, 23 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 24 who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith. 203 25 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson. 621 26 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 27 “The standard for determining whether a plaintiff has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 VI fi-p.v-niq08-RF.N-TT ,R 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 2 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 3 Cir. 2012) (noting that screening pursuant to § 1915 A “incorporates the familiar standard 4 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 5 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal. 7 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm. 680 F.3d at 1121. 8 All complaints must contain “a short and plain statement of the claim showing that 9 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 10 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 11 mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining 12 whether a complaint states a plausible claim for relief [is] ... a context-specific task that 13 requires the reviewing court to draw on its judicial experience and common sense.” Id. 14 The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed 15 me accusation^]” fall short of meeting this plausibility standard. Id.; see also Moss v. 16 U.S. Secret Service. 572 F.3d 962, 969 (9th Cir. 2009). “When there are well-pleaded factual allegations, a court should assume their 17 18 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 19 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 20 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 21 allegations of material fact and must construe those facts in the light most favorable to 22 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 23 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”). However, while the court “ha[s] an obligation where the petitioner is pro se, 24 25 particularly in civil rights cases, to construe the pleadings liberally and to afford the 26 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 27 2010) (citing Bretzv. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985)), it may not 28 III 4 1 • 1 fi-rv.n 1 QQK-RF.N-IT ,R 1 “supply essential elements of claims that were not initially pled.” Ivey v. Bd. ofRegents 2 ofthe University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 B. 4 Plaintiff has filed a forty-one (41) page Complaint in which he names ten (10) 5 defendants and attaches over 300 pages of exhibits. (Docket No. 1.) Plaintiff alleges that 6 he suffers from several arthritic ailments as well as “syncope.” (Id at 26.) In his 7 Complaint, plaintiff alleges that he filed a grievance on May 12, 2015 against his primary 8 RJD physician, Dr. Yu, claiming that Yu failed to reissue a “lower bunk/extra mattress” 9 chrono that plaintiff had received at a prison where he was previously housed. (Id. at 13- Plaintiffs Allegations 10 14.) Yu denied plaintiffs grievance. (Id at 14.) On June 9, 2015, Defendant Robert 11 Walker, denied plaintiffs grievance at the first level of medical review. (Id.) On August 12 14, 2015, Defendants Roberts and Glynn denied plaintiffs grievance at the second level 13 of review and J. Lewis, deputy director of the CDCR’s Health Care Services Appeals 14 Branch denied plaintiffs grievance at the final level of review on October 12, 2015. On 15 August 21, 2015, plaintiff claims that he fell off his top bunk and injured his knee and 16 hip. (Id. at 16.) 17 C. 18 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 42 U.S.C. § 1983 19 elements: (1) that a right secured by the Constitution or laws of the United States was 20 violated, and (2) that the alleged violation was committed by a person acting under the 21 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 22 1035-36 (9th Cir. 2015). 23 D. 24 As an initial matter, the Court finds that to the extent Plaintiff names the State of 25 California or RJD as Defendants in this action, his claims must be dismissed sua sponte 26 pursuant to both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim and 27 for seeking damages against defendants who are immune. The State of California’s 28 Department of Corrections and Rehabilitation and any state prison, correctional agency, Eleventh Amendment Immunity 5 1 • 1 fi-r.v-0199R-RF.N- TT R 1 sub-division, or department under its jurisdiction, are not “persons” subject to suit under 2 § 1983. Groten v. California. 251 F.3d 844, 851 (9th Cir. 2001) (citing Hale v. State of 3 Arizona, 993 F.2d 1387,1398-99 (9th Cir. 1993) (holding that a state department of 4 corrections is an arm of the state, and thus, not a “person” within the meaning of 5 § 1983)). In addition, to the extent that plaintiff seeks to sue the State of California itself 6 for monetary damages, his claims are clearly barred by the Eleventh Amendment. See 7 Alabama v. Pugh. 438 U.S. 781, 782 (1978) (per curiam) (“There can be no doubt... 8 that [a] suit against the State and its Board of Corrections is barred by the Eleventh 9 Amendment, unless [the State] has consented to the filing of such a suit.”). 10 11 Therefore, to the extent Plaintiff seeks monetary damages against the State of California or RJD, these claims are dismissed without leave to amend. 12 E. 13 Plaintiff names Clark Kelso, the medical receiver for the CDCR, on the first page Individual Liability 14 of his Complaint. However, nowhere in the body of his pleading does he include “further 15 factual enhancement” which describes when, how, or to what extent, Defendant Kelso 16 actually caused him constitutional injury. Iqbal, 556 U.S. at 678 (citing Twomblv. 550 17 U.S. at 557). Plaintiff provides each party’s general job description and title, but 18 “[b]ecause vicarious liability is inapplicable to ... § 1983 suits, [he] must plead that each 19 government-official defendant, through the official’s own individual actions, has violated 20 the Constitution.” Id- at 676; see also Jones v. Community Redevelopment Agency of 21 City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege 22 with at least me degree of particularity overt acts which defendants engaged in” in order 23 to state a claim). 24 Plaintiff has offered no detail from which the Court might reasonably infer a 25 plausible claim for relief based on a violation of any constitutional right as to Defendant 26 Kelso. See Iqbal, 662 U.S. at 678 (noting that Fed.R.Civ.P. 8 “demands more than an 27 unadorned, the-defendant-unlawfully-harmed-me accusation,” and that “[t]o survive a 28 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 6 1 • 1 fi-p.v-fl 199R-RRN-TT R 1 ‘state a claim for relief that is plausible on its face.’”) (quoting Twombly, 550 U.S. at 2 555, 570). 3 Thus, for this reason alone, the Court finds Plaintiffs Complaint sets forth no facts 4 which might be liberally construed to support any sort of individualized constitutional 5 claim Defendant Kelso. Accordingly, the claims against Kelso must be dismissed on this 6 basis pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez. 203 F.3d at 1126- 7 27; Rhodes. 621 F.3d at 1004. Eighth Amendment Medical Claims 8 F. 9 Plaintiff claims that his primary physicians, along with the doctors who responded 10 to his administrative grievances, failed to provide him with adequate medical care. “The 11 government has an ‘obligation to provide medical care for those whom it is punishing by 12 incarceration,’ and failure to meet that obligation can constitute an Eighth Amendment 13 violation cognizable under § 1983.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 14 2014) (quoting Estelle v. Gamble. 429 U.S. 97, 103-05 (1976)). “In order to prevail on 15 an Eighth Amendment claim for inadequate medical care, a plaintiff must show 16 ‘deliberate indifference’ to his ‘serious medical needs.’” Id. 17 “To establish an Eighth Amendment violation, a prisoner ‘must satisfy both the 18 objective and subjective components of a two-part test.’” Toguchi v. Chung, 391 F.3d 19 1051, 1057 (9th Cir. 2004). “To meet the objective element of the standard, a plaintiff 20 must demonstrate the existence of a serious medical need.” Colwell, 763 F.3d at 1066. 21 “Such a need exists if failure to treat the injury or condition ‘could result in further 22 significant injury’ or cause ‘the unnecessary and wanton infliction of pain.’” Id. To meet 23 the subjective element of the standard, a plaintiff must demonstrate “(a) a purposeful act 24 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by 25 the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “A prison official 26 is deliberately indifferent under the subjective element of the test only if the official 27 ‘knows of and disregards an excessive risk to inmate health and safety.’” Colwell. 763 28 F.3d at 1066. 7 3 • 1 fi-r.v-f) 1QQR-RFN-TT .R 1 First, “[b]ecause society does not expect that prisoners will have unqualified access 2 to health care, deliberate indifference to medical needs amounts to an Eighth Amendment 3 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 4 citing Estelle. 429 U.S. at 103-04. At this stage of the proceedings, the Court will 5 presume plaintiffs claims regarding his health care needs are sufficient to plead an 6 objectively serious medical need. The Court also finds that plaintiff has stated claims as 7 to Defendants Yu, Walker, Roberts, Glynn and Lewis sufficient to survive the “low 8 threshold” for proceeding past the sua sponte screening required by 28 U.S.C. 9 §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman. 680 F.3d 1113, 1123 (9th Cir. 10 2012). 11 However, even assuming Plaintiffs medical needs are sufficiently serious, his 12 Complaint still fails to include any further “factual content” to show that Defendants 13 Guldoeth or Gines2, acted with “deliberate indifference” to his needs. Jett v. Penner, 439 14 F.3d 1091, 1096 (9th Cir. 2006); Iqbal 556 U.S. at 678. 15 With respect to Dr. Guldoeth, plaintiff alleges that Dr. Guldoeth “confirmed his 16 disability” and on December 28, 2015 wrote a “permanent chrono” for plaintiff providing 17 him with a lower bunk. (Docket No. 1 at 19.) He further alleges that Dr. Guldoeth 18 requested an “orthopedic consult” for plaintiff on January 6, 2016. As for Defendant 19 Gines, plaintiff claims he “spoke to [Defendant Gines” on several occasions in August of 20 2015 informing Defendant Gines of his various ailments. There are no allegations that 21 Defendant Gines refused to treat plaintiff or provide him with medical care. 22 23 Plaintiffs Complaint lacks the “further factual enhancement” which demonstrates that Defendants Guldoeth or Gines made any “purposeful act or failure to respond” to his 24 pain or possible medical need. Iqbal 556 U.S. at 678, citing Twomblv, 550 U.S. at 557; 25 26 27 2 Plaintiff neither identifies “Gines” as a defendant in the caption of his Complaint or in the section 28 following in which he identifies individual defendants. However, Plaintiff refers to a Defendant “Gines” in the body of the Complaint itself. (See Docket No. 1 at 24-25.) 8 • 1 fi-r.v-0100R-RF.N-TT R 1 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012), citing Jett, 439 F.3d at 1096. 2 This is because to be deliberately indifferent, a defendant’s acts or omissions must 3 involve more than an ordinary lack of due care. Wilhelm, 680 F.3d at 1122. Accordingly, the Court finds that Plaintiffs claim against Defendants Gines or 4 5 Guldoeth fails to state an Eighth Amendment inadequate medical care claim and is 6 subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 7 § 1915A(b)(l). 8 G. 9 Finally, plaintiff also seeks to bring a due process claim based on the manner in Fourteenth Amendment Claims 10 which Defendants responded to his administrative grievances. The Ninth Circuit has held 11 that inmates have no protected property interest in an inmate grievance procedure arising 12 directly from the Due Process Clause. See Ramirez v. Galaza. 334 F.3d 850, 869 (9th 13 Cir. 2003) (“[Ijnmates lack a separate constitutional entitlement to a specific prison 14 grievance procedure”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding 15 that the due process clause of the Fourteenth Amendment creates “no legitimate claim of 16 entitlement to a [prison] grievance procedure”)). Even the non-existence of, or the failure 17 of prison officials to properly implement, an administrative appeals process within the 18 prison system does not raise constitutional concerns. Mann, 855 F.2d at 640. Moreover, Plaintiff pleads no facts to suggest how Defendants’ allegedly 19 20 inadequate review or failure to consider inmate grievances restrained his freedom in any 21 way, or subjected him to any “atypical” and “significant hardship.” Sandin v. Conner, 22 515 U.S. 472, 484 (1995). Therefore, Plaintiffs due process allegations arising from the 23 filing of his administrative grievances are dismissed for failing to state a claim. Because 24 Plaintiff is seeking to hold Defendant Van Buren liable for the rejection of his 25 administrative grievance and does not allege that Van Buren was responsible for any 26 medical decisions arising from his grievances, Defendant Van Buren is also dismissed 27 from this action for failing to state a claim upon which relief may be granted. 28 III 9 "VI 6-r.v-01 QQR-RFN-TT R 1 III. Conclusion and Orders 2 Good cause appearing, the Court: 3 1. GRANTS Plaintiffs motion to proceed in forma pauperis (Docket No. 3); 4 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 5 Plaintiffs prison trust account the $350 filing fee owed in this case by garnishing 6 monthly payments from his account in an amount equal to twenty percent (20%) of the 7 preceding month’s income and forwarding those payments to the Clerk of the Court each 8 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 9 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 10 ASSIGNED TO THIS ACTION; 3. 11 12 DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Keman, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 4. 13 DISMISSES Defendants State of California and “RJDCF” for failure to 14 state a claim against them pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and 15 because these Defendants are immune from suit under the Eleventh Amendment; 5. 16 DISMISSES Defendants Kelso, Guldoeth, Gines, and Van Buren for failure 17 to state a claim against them 28 U.S.C. § 1915(e)(2) and § 1915A(b); 6. 18 19 failing to state a claim upon which relief may be granted; 7. 20 21 DISMISSES Plaintiffs Fourteenth Amendment due process claims for DIRECTS the Clerk to issue a summons as to the remaining Defendants in Plaintiffs Complaint (Docket No. 1) and to send it to Plaintiff along with a blank U.S. 22 Marshal Form 285 for each Defendant. In addition, the Court directs the Clerk to provide 23 Plaintiff with a certified copy of this Order, and a certified copy of his Complaint so that 24 he may serve each Defendant. Upon receipt of this “IFP Package,” Plaintiff must 25 complete the Form 285s as completely and accurately as possible, and return them to the 26 United States Marshal according to the instructions the Clerk provides in the letter 27 accompanying his IFP package; 28 III 10 -1-1 fi-r.v-01QQ8-RF.N-TT R 1 8. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 2 upon each Defendant as directed by Plaintiff on the USM Form 285s. All costs of service 3 will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Crv. P. 4(c)(3); 4 9. ORDERS the remaining and served Defendants to reply to Plaintiffs 5 Complaint within the time provided by the applicable provisions of Federal Rule of Civil 6 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 7 permitted to “waive the right to reply to any action brought by a prisoner confined in any 8 jail, prison, or other correctional facility under section 1983,” once the Court has 9 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 10 and thus, has made a preliminary determination based on the face on the pleading alone 11 that plaintiff has a “reasonable opportunity to prevail on the merits,” the defendant is 12 required to respond); and 13 10. ORDERS after service has been effected by the U.S. Marshal, to serve upon 14 the named Defendants, or, if appearance has been entered by counsel, upon Defendants’ 15 counsel, a copy of every further pleading, motion, or other document submitted for the 16 Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 17 original document he seeks to file with the Clerk of the Court, a certificate stating the 18 manner in which a true and correct copy of that document has been was served on 19 Defendants or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any 20 document received by the Court which has not been properly filed with the Clerk or 21 which fails to include a Certificate of Service upon Defendants may be disregarded. 22 IT IS SO ORDERED. 23 24 25 26 Dated: November , 2016 HonJRoge^T. Benitez UnifeaSfates District Judge 27 28 li 'Vlfi-r.v-01 QQX-RRN-TT /R

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