Shufelt v. Silva et al

Filing 11

ORDER Directing U.S. Marshal to Effect Service of First Amended Complaint; and Denying 9 Plaintiff's Motion for Relief. Plaintiff's Motion denied as moot. Signed by Judge Larry Alan Burns on 12/21/2017. (IFP packet prepared to be sent to pro se plaintiff via U.S. Mail Service; package includes certified copy of IFP Order - Doc. 4 .) (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE W. SHUFELT,
CDCR #T-65128,

Case No.: 3:17-cv-01652-LAB-PCL
ORDER: (1) DIRECTING U.S.
MARSHAL TO EFFECT SERVICE
OF FIRST AMENDED
COMPLAINT; and (2) DENYING
PLAINTIFF’S MOTION FOR
RELIEF PURSUANT TO FRCP 60(b)

Plaintiff,

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vs.

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J. SILVA; S. PASHA; M GLYNN; S.
ROBERTS; R. WALKER; J. LEWIS; R.
ZHANG
Defendants.

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I.

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Procedural History
On August 16, 2017, George W. Shufelt (“Plaintiff”), proceeding pro se and

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currently incarcerated at High Desert State Prison in Susanville, California, filed a civil

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rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff

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claimed that his Eighth Amendment rights were violated when he was housed at the

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Richard J. Donovan Correctional Facility (“RJD”) in 2014 and 2015.

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3:17-cv-01652-LAB-PCL

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In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

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to 28 U.S.C. § 1915(a) (ECF No. 3). On September 25, 2017, the Court GRANTED

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Plaintiff’s Motion to Proceed IFP but simultaneously DISMISSED his Complaint for

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failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (ECF No. 4.)

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Plaintiff was granted leave to file a First Amended Complaint in order to correct the

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deficiencies of pleading identified in the Court’s Order. (Id.)

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Plaintiff then sought an extension of time to file his amended pleading. (ECF No.

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6.) Plaintiff’s request was GRANTED and he was instructed to file his amended

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pleading by December 19, 2017. (ECF No. 7.) However, instead of filing his amended

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pleading, Plaintiff filed a “Motion for Relief from Order based on mistake under F.R.C.P.

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60(b).” (ECF No. 9.) In this Motion, Plaintiff expresses his disagreement with several of

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the Court’s findings in the September 25th Order and sought relief from the Court’s

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instruction that he comply with S.D. CivLr 8.2(a). This local rule provides

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that“[c]omplaints by prisoners under the Civil Rights Act, 42 U.S.C. § 1983, must be

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legibly written or typewritten on forms supplied by the court” and “[a]dditional pages not

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to exceed fifteen (15) in number may be included with the court approved form

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complaint, provided the form is completely filled ion to the extent applicable.” S.D.

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CivLr 8.2(a).

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However, one day after filing this Motion, Plaintiff filed his First Amended

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Complaint (“FAC”). (ECF No. 10.) Therefore, Plaintiff’s Motion for Relief from Order

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is DENIED as moot.

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II.

Sua sponte screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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As the Court informed Plaintiff in the previous Order, notwithstanding Plaintiff’s

Standard of Review

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IFP status or the payment of any partial filing fees, the Prison Litigation Reform Act

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(“PLRA”) obligates the Court to review complaints filed by all persons proceeding IFP

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

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accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the
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3:17-cv-01652-LAB-PCL

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

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

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these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,

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which are frivolous, malicious, fail to state a claim, or which seek damages from

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

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v.

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Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

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a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

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the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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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

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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The court “ha[s] an obligation where the petitioner is pro se, particularly in civil

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rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of

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any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v.

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Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)).

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As currently pleaded, the Court finds that Plaintiff’s First Amended Complaint

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contains factual content sufficient to survive the “low threshold” for proceeding past the

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sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), because it

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alleges Eighth Amendment claims which are plausible on its face. See Wilhelm, 680 F.3d

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at 1123; Iqbal, 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 104 (1976) (prison

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officials’ deliberate indifference to an inmate’s serious medical needs constitutes cruel

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and unusual punishment in violation of the Eighth Amendment).

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Accordingly, the Court will direct the U.S. Marshal to effect service upon the

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named Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the

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court shall issue and serve all process, and perform all duties in [IFP] cases.”); FED. R.

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CIV. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal

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or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

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U.S.C. § 1915.”).

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III.

Conclusion and Order

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For the reasons explained, the Court:

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1.

DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended

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Complaint (ECF No. 10) and forward it to Plaintiff along with a blank U.S. Marshal

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Form 285 for each named Defendant. In addition, the Clerk will provide Plaintiff with a

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certified copy of the Court’s September 25, 2017 Order granting Plaintiff IFP status, a

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certified copy of his First Amended Complaint and the summons so that he may serve the

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named Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form

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285s as completely and accurately as possible, include an address where each named

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Defendant may be found and/or subject to service, and return them to the United States

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Marshal according to the instructions the Clerk provides in the letter accompanying his

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IFP package;

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ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint

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and summons upon the named Defendants as directed by Plaintiff on the USM Form 285s

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provided to him. All costs of that service will be advanced by the United States. See 28

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U.S.C. § 1915(d); FED. R. CIV. P. 4(c)(3);

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ORDERS the named and served Defendants to reply to Plaintiff’s First

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Amended Complaint within the time provided by the applicable provisions of Federal

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Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may

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occasionally be permitted to “waive the right to reply to any action brought by a prisoner

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confined in any jail, prison, or other correctional facility under section 1983,” once the

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Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and §

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1915A(b), and thus, has made a preliminary determination based on the face on the

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pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” the

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defendant is required to respond); and

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ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon the named Defendants, or, if appearance has been entered by counsel, upon

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

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submitted for the Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must

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include with every original document he seeks to file with the Clerk of the Court, a

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certificate stating the manner in which a true and correct copy of that document has been

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was served on Defendants or their counsel, and the date of that service. See S.D. CAL.

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CIVLR 5.2. Any document received by the Court which has not been properly filed with

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the Clerk or which fails to include a Certificate of Service upon Defendants may be

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disregarded.

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3:17-cv-01652-LAB-PCL

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5.

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IT IS SO ORDERED.

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DENIES Plaintiff’s “Motion for Relief from Order” (ECF No. 9) as moot.

Dated: December 21, 2017

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HON. LARRY ALAN BURNS
United States District Judge

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