Stroud v. Gore et al

Filing 30

ORDER granting 17 Motion to Dismiss. Defendants Sheriff William D. Gore and Sergeant Paul Michalke are dismissed without prejudice. Plaintiff may file a Second Amended Complaint within 30 days of the electronic docketing of this Order. (Summons and IFP package prepared as to the First Amended Complaint). Signed by Judge Janis L. Sammartino on 11/27/2018. (All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 WILLARD RICHARD STROUD, JR., Case No.: 18-CV-515 JLS (MDD) Plaintiff, 11 12 13 ORDER GRANTING MOTION TO DISMISS v. SHERIFF WILLIAM D. GORE, et al., 14 (ECF No. 17) Defendants. 15 16 Presently before the Court is Defendants Sheriff William D. Gore and Sergeant Paul 17 Michalke’s (the “Responding Defendants”) Motion to Dismiss First Amended Complaint 18 (“FAC”) (“Mot.,” ECF No. 17). Also before the Court are the Responding Defendants’ 19 Notice of Lack of Opposition to (ECF No. 23), Plaintiff’s Response in Opposition to 20 (“Opp’n,” ECF No. 25), the Responding Defendants’ Reply to Plaintiff’s Opposition to 21 (“Reply,” ECF No. 26), and Plaintiff’s second Opposition to (“Sur-Reply,” ECF No. 29) 22 the Motion. The Court vacated the hearing on the Motion and took the matter under 23 submission without oral argument. ECF No. 22. After considering the Parties’ arguments 24 and the law, the Court GRANTS the Responding Defendants’ Motion. 25 BACKGROUND 26 On March 13, 2016 at approximately 8:30 p.m., Plaintiff was walking in the parking 27 lot of the George Bailey Detention Facility to visit a family member. FAC, ECF No. 15, 28 at 2. Defendants stopped Plaintiff and requested that he provide them with identification, 1 18-CV-515 JLS (MDD) 1 which he did. Id. They also asked Plaintiff what he had previously been arrested for, which 2 Plaintiff told them. Id. Defendants then informed Plaintiff that he would need to submit 3 to a search of his person and vehicle before he would be allowed to continue with his visit. 4 Id. Plaintiff declined. Id. 5 At that point, eight to ten San Diego County Sheriff’s Deputies grabbed Plaintiff and 6 slammed him against a vehicle in the parking lot. Id. at 3. Although Plaintiff begged the 7 officers to stop, they continued to smash his face against the vehicle and to twist his wrists 8 behind his back. Id. Because Plaintiff had been holding his phone when the attack began, 9 the phone fell to the ground. Id. The officers then threw Plaintiff to the ground, where 10 they “jumped on his back with their knees” and handcuffed him. Id. One officer jumped 11 on the handcuffs, injuring Plaintiff’s wrists. Id. 12 Plaintiff could not feel his hands and told the officers that he was in a great deal of 13 pain. Id. The officers asked Plaintiff whether he required medical attention. Id. Plaintiff 14 told them that he did. Id. The officers called the paramedics, who briefly examined 15 Plaintiff and informed him that he had no broken bones. Id. Nonetheless, Plaintiff 16 continues to suffer nerve damage to his wrists and lower back. Id. at 8. 17 Plaintiff was then arrested for being drunk and disorderly and was placed in the back 18 of a patrol car for over an hour before being transported to jail, during which time the 19 numbness in his hands worsened. Id. at 3. Although he repeatedly asked the defendants 20 to loosen his handcuffs, they did not do so. Id. Plaintiff also asked repeatedly for his cell 21 phone, but the officers told them that they had no idea what had happened to it. Id. at 4. 22 Plaintiff was not given a toxicology or sobriety test, despite requesting one from the 23 officers. Id. After Plaintiff’s arrest, the officers then searched his vehicle without his 24 consent. Id. 25 After Plaintiff was released from custody the following day, March 13, 2016, at 26 which time he returned to the George Bailey Detention Facility to retrieve his vehicle. Id. 27 Plaintiff asked a patrol officer in the parking lot whether his cell phone, which was not 28 logged as his property during the booking process, had been turned in to the lost and found. 2 18-CV-515 JLS (MDD) 1 Id. The officer gave Plaintiff’s contact information to Sergeant Paul Michalke, who called 2 Plaintiff a couple days later to tell Plaintiff that the officers had no idea what had happened 3 to Plaintiff’s phone. Id. Sergeant Michalke told Plaintiff that a phone was found on the 4 ground but that it belonged to one of the officers, and suggested that Plaintiff file a claim 5 with the Sheriff’s Department for the loss of his phone. Id. at 5. Plaintiff’s phone had cost 6 $900 dollars and contained personal information and photographs that Plaintiff cannot 7 replace. Id. at 4. Ultimately, the Sheriff’s Department refused Plaintiff’s claim because 8 the cell phone bill was in Plaintiff’s sister’s name, not his own. Id. at 6, 8. 9 Sergeant Michalke also told Plaintiff that Sergeant Michalke did not believe that 10 Plaintiff had been under the influence of drugs or alcohol on the night of Plaintiff’s arrest, 11 but that Sergeant Michalke agreed to “go along with” the other two officers in charging 12 Plaintiff with public intoxication. Id. at 5. Although Plaintiff was originally arrested for 13 public intoxication, he was later charged with resisting arrest. Id. Plaintiff was found not 14 guilty at trial. Id. at 7. Sergeant Michalke did not testify at the trial. Id. 15 On March 9, 2018, Plaintiff filed this action pursuant to 42 U.S.C. § 1983 against 16 Sheriff William D. Gore, Detective Lizarraga, Sergeant Michalke, Detective Oshea, and 17 the City of San Diego Paramedics Services. See ECF No. 1. Plaintiff was granted leave 18 to proceed in forma pauperis, see ECF No. 4, and the United States Marshals Service 19 served Sheriff Gore and Sergeant Michalke on April 27, 2018. See ECF Nos. 6, 10. The 20 Sheriff’s Office refused to accept service on Detectives Lizarraga and Oshea and the City 21 of San Diego Paramedics Services. See ECF Nos. 7–9. 22 The Responding Defendants filed a motion to dismiss Plaintiff’s original complaint 23 on May 18, 2018. See ECF No. 11. After the Court granted Plaintiff leave to file the 24 operative First Amended Complaint, see ECF Nos. 14, 15, the Court denied as moot the 25 prior motion to dismiss. See ECF No. 16. The instant Motion followed on June 4, 2018. 26 See ECF No. 17. 27 /// 28 /// 3 18-CV-515 JLS (MDD) 1 Plaintiff’s First Amended Complaint adds as defendants Detective M. Snelling, 2 Deputy K. Racine, and Paramedic E. Lancaster. See generally ECF No. 15. No attempt 3 has been made to serve these defendants or to re-serve Detectives Lizarraga or Shea.1 4 LEGAL STANDARD 5 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 6 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 7 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 8 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 9 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 10 pleader is entitled to relief.” 11 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 12 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 13 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 14 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 15 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 16 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 17 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 18 enhancement.’ ” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). Although Rule 8 “does not require ‘detailed factual 19 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 20 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 21 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 22 when the facts pled “allow the court to draw the reasonable inference that the defendant is 23 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 24 556). That is not to say that the claim must be probable, but there must be “more than a 25 26 1 27 28 Plaintiff’s First Amended Complaint lists “Detective B. Shea” rather than “Detective Oshea” as a defendant. Because the U.S. Marshals Service reported that the Sheriff’s Office had no detectives with the last name Oshea, see ECF No. 7, the Court assumes that this is a correction and that these defendants are the same individual. 4 18-CV-515 JLS (MDD) 1 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 2 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 3 Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” 4 contained in the complaint. Id. This review requires context-specific analysis involving 5 the Court’s “judicial experience and common sense.” Id. at 678 (citation omitted). 6 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 7 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 8 pleader is entitled to relief.’” Id. 9 ANALYSIS 10 Plaintiff alleges four causes of action: (1) excessive force, (2) unlawful seizure, 11 (3) unlawful arrest and unlawful detention, and (4) malicious prosecution. See FAC at 11– 12 12; Sur-Reply at 9–15. Because Plaintiff does not specify in his FAC which causes of 13 action are alleged against which Defendants, the Court assumes that all causes of action 14 are alleged against every Defendant. 15 The Responding Defendants move to dismiss Plaintiff’s First Amended Complaint 16 pursuant to Rule 12(b)(6) on the grounds that Plaintiff’s complaint does not comply with 17 Federal Rule of Civil Procedure 8, Sheriff Gore was not personally involved in the incident, 18 and it is unclear what actions Sergeant Michalke took that violated Plaintiff’s constitutional 19 rights.2 See generally Mot. at 5–10. 20 /// 21 /// 22 23 24 25 26 27 28 2 The Responding Defendants also request, see Reply at 2, that the Court disregard Plaintiff’s late-filed Opposition, which was accepted nunc pro tunc on discrepancy. See ECF No. 24. Plaintiff responds that he “filed the opposition to [the Responding] Defendants’ motion to dismiss only by research of the procedure and by sheer luck” because “Plaintiff had no idea that each pleading must be responded to in a timely manner.” Sur-Reply at 5. In light of Plaintiff’s pro se status and the circumstances, the Court believes that disregarding Plaintiff’s Opposition would be inappropriate. See, e.g., Haynes v. R.W. Selby & Co., 338 F. App’x 694, 695 (9th Cir. 2009) (finding that district court erred in dismissing action for failure timely to file an opposition where party was unrepresented and “there was no argument or evidence of prejudice to defendants”). 5 18-CV-515 JLS (MDD) 1 I. Compliance with Federal Rule of Civil Procedure 8 2 Pursuant to Rule 8(a)(2), “[a] pleading that states a claim for relief must contain . . . a 3 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 4 R. Civ. P. 8(a)(2). Rule 8(d)(1) requires that “[e]ach allegation must be simple, concise, 5 and direct.” Fed. R. Civ. P. 8(d)(1). The Responding Defendants argue that “Plaintiff’s 6 First Amended Complaint is confusing and conclusory and fails to give the responding 7 defendants . . . adequate notice of what particular claims he is asserting against them,” and 8 therefore request that “Plaintiff’s First Amended Complaint . . . be dismissed pursuant to 9 Rule 8.” Mot. at 6; see also Reply at 2–3. 10 Plaintiff counters that, as a pro se litigant, his pleadings are to be construed liberally, 11 see Opp’n at 11 (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and adds that “[i]llegal 12 search constitutes a Fourth Amendment violation, Excessive Force, False Arrests, 13 Malicious Prosecution, Cruel and Unusual Punishment Constitutes an Eighth Amendment 14 violation and Due Process and deprivation of Due Process Constitutes the Violation of the 15 Fourteenth Amendment; and Plaintiff has illustrated each component of the law in his 16 Complaint.” Id. at 12–13. Plaintiff also claims that the Responding Defendants’ argument 17 “appears to be a legal ‘loophole’ that allows Defendants to petition the Court to dismiss a 18 Complaint based on ambiguity and inadequacy.” Sur-Reply at 7. 19 Ninth Circuit precedent is clear that “[f]ailure, in an initial complaint, to set forth the 20 claim by means of a short and plain statement, as required by Rule 8(a)(2), is not a ground 21 for dismissal of an action with prejudice, since there are procedures available for correcting 22 a vague or prolix complaint,” such as a Rule 12(e) motion for a more definite statement. 23 DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966) (citing Glus v. Brooklyn E. Dist. 24 Terminal, 359 U.S. 231, 235 (1959)). It is only “[w]here a plaintiff persists in violating 25 Rule 8(a)(2), after being given an opportunity to replead,” that “dismissal may be proper.” 26 Id. at 685 n.1 (citing Corcoran v. Yorth, 347 F.2d 222, 223 (9th Cir. 1965); Agnew v. 27 Moody, 330 F.2d 868, 870–71 (9th Cir. 1964)). 28 /// 6 18-CV-515 JLS (MDD) 1 Plaintiff’s First Amended Complaint could be clearer as to his precise causes of 2 action and against which particular defendants those causes of action are asserted. 3 Nonetheless, if the Responding Defendants truly believed that the First Amended 4 Complaint was so defective as to fail to provide adequate notice as to what causes of action 5 were being asserted again them, their proper recourse was under Rule 12(e). The Court 6 therefore declines to dismiss Plaintiff’s First Amended Complaint pursuant to Rule 7 12(b)(6) for failure to comply with Rule 8(a)(2), electing instead to address Plaintiff’s First 8 Amended Complaint on the merits. 9 II. Causes of Action Against Sheriff Gore 10 The Responding Defendants argue that any claims against Sheriff Gore must be 11 dismissed because “[t]here are no factual allegations indicating Sheriff Gore was involved 12 in the incident or even has awareness of its existence.” Mot. at 6. Plaintiff explains in his 13 First Amended Complaint that he “has included the aforementioned named defendants in 14 his complaint because Sheriff William Gore is the highest ranking officer in San Diego 15 County Sheriff[’]s Department thus he is responsible for the actions and behavior of the 16 subordinate officers within his department.” FAC at 9. Plaintiff adds that “Sheriff Gore 17 has deputies within his department who act without regard to civil procedure and California 18 State regulations as it relates to having probable cause to search and arrest an individual 19 without a justifiable reason and without following Federal and State rules as prescribed by 20 the Constitution of the United States of America.” Id. 21 As the Responding Defendants note, see Mot. at 6, “[a] supervisor is only liable for 22 constitutional violations of his subordinates if the supervisor participated in or directed the 23 violations, or knew of the violations and failed to act to prevent them. There is no 24 respondeat superior liability under section 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th 25 Cir. 1989) (citing Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680– 26 81 (9th Cir. 1984)). Because such allegations are wholly lacking in Plaintiff’s First 27 Amended Complaint, the Court GRANTS the Responding Defendants’ Motion and 28 DISMISSES WITHOUT PREJUDICE all causes of action against Sheriff Gore. 7 18-CV-515 JLS (MDD) 1 III. Causes of Action Against Sergeant Michalke 2 The Responding Defendants contend that “[i]t is entirely unclear what constitutional 3 right under § 1983 Plaintiff believed Sergeant Michalke violated” because “any specific 4 allegations in the complaint involving Sergeant Michalke are confined to discussions 5 regarding Plaintiff’s cell phone” but “Plaintiff has . . . failed to present sufficient facts 6 supporting that Sergeant Michalke effectuated a constitutional injury” rather than that 7 “Sergeant Michalke attempted to assist Plaintiff in tracking down the allegedly lost phone.” 8 Mot. at 8–9. 9 As indicated above, Plaintiff alleges four causes of action: (1) excessive force, 10 (2) unlawful seizure, (3) unlawful arrest and unlawful detention, and (4) malicious 11 prosecution. See FAC at 11–12; Sur-Reply at 9–15. Plaintiff explains in his First Amended 12 Complaint that he “has included Sergeant Paul Michalke in his complaint due to the fact 13 that [Sgt. Michalke] is the contact person that was given to plaintiff after the plaintiff was 14 subsequently released from jail the following day.” FAC at 10. From the face of Plaintiff’s 15 First Amended Complaint, it appears that Sergeant Michalke was not among the officers 16 involved in the events alleged on March 12, 2016. Instead, Sergeant Michalke first entered 17 the scene “a few days” after Plaintiff was released from jail on March 13, 2016, when 18 Sergeant Michalke “called [Plaintiff] at his place of employment” about Plaintiff’s cell 19 phone. See id. at 4. Sergeant Michalke gave conflicting information about the fate of 20 Plaintiff’s cell phone, see id. at 4–5, and eventually suggested that Plaintiff file a claim 21 with the Sheriff’s Department, see id. at 5, which was denied. See id. at 6, 8. The Court 22 therefore concludes that, to the extent Plaintiff asserts his first, second, or third causes of 23 action against Sergeant Michalke, Plaintiff fails to state a claim because he alleges no 24 involvement by Sergeant Michalke in the use of force, the unlawful seizure of Plaintiff’s 25 cell phone, or Plaintiff’s detention or arrest. 26 With regard to Plaintiff’s fourth cause of action for malicious prosecution, “the tort 27 has traditionally been regarded as a disfavored cause of action” because “courts have long 28 recognized that the tort has the potential to impose an undue ‘chilling effect’ on the 8 18-CV-515 JLS (MDD) 1 ordinary citizen’s willingness to report criminal conduct or to bring a civil dispute to court.” 2 Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 872 (1989) (citing Babb v. Super. 3 Ct., 3 Cal. 3d 841, 847 (1971); Jaffe v. Stone, 18 Cal. 2d 146, 159–160 (1941)). “Under 4 the governing authorities, in order to establish a cause of action for malicious prosecution 5 of either a criminal or civil proceeding, a plaintiff must demonstrate ‘that the prior action 6 (1) was commenced by or at the direction of the defendant and was pursued to a legal 7 termination in his, plaintiff’s, favor . . . ; (2) was brought without probable cause . . . ; and 8 (3) was initiated with malice.” Sheldon Appel Co., 47 Cal. 3d at 871–72 (quoting Bertero 9 v. Nat’l Gen. Corp., 13 Cal. 3d 43, 50 (1974)) (citing Rest. 2d Torts §§ 653–681B (1977)). 10 A defendant may lack probable cause where “he relies upon facts which he has no 11 reasonable cause to believe to be true.” Sangster v. Paetkau, 68 Cal. App. 4th 151, 164 12 (1998). The standard is objective, see id. (citing Sheldon Appel Co., 47 Cal. 3d at 878–79), 13 and, “[i]n making its determination whether the prior action was legally tenable, the trial 14 court must construe the allegations of the underlying complaint liberally in a light most 15 favorable to the malicious prosecution defendant.” Sangster v. Paetkau, 68 Cal. App. 4th 16 151, 165 (1998) (citing Leonardini v. Shell Oil Co., 216 Cal. App. 3d 547, 571 (1989)). 17 Here, Plaintiff alleges that Sergeant Michalke told Plaintiff that “[Sergeant 18 Michalke] did not believe that [Plaintiff] was under the influence of drugs of alcohol on 19 the night of March 12, 2016[,] but only agreed to charge [Plaintiff] [with public 20 intoxication] to go along with what the other two reporting officers who wanted to charge 21 [Plaintiff] on these false charges.” FAC at 5. Plaintiff was later charged with resisting 22 arrest. Id. He was eventually acquitted of the charge. Id. at 7. Even construing these facts 23 most favorable to Sergeant Michalke, the Court finds that the first two elements of 24 Plaintiff’s cause of action are satisfied. 25 As for the third element, “[t]he ‘malice’ element of the malicious prosecution tort 26 relates to the subjective intent or purpose with which the defendant acted in initiating the 27 prior action, and past cases establish that the defendant’s motivation is a question of fact 28 to be determined by the jury.” Sheldon Appel Co., 47 Cal. 3d at 874 (citing Runo v. 9 18-CV-515 JLS (MDD) 1 Williams, 162 Cal. 444, 450 (1912); Rest. 2d Torts § 681B(2)(b) (1977)). The California 2 Court of Appeal has explained: 3 [M]alice is present when proceedings are instituted primarily for an improper purpose. Suits with the hallmark of an improper purpose are those in which: (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim. 4 5 6 7 8 9 10 11 Sierra Club Found. v. Graham, 72 Cal. App. 4th 1135, 1157 (1999) (internal quotation 12 marks and alteration omitted). 13 [B]y itself, the conclusion that probable cause is absent logically tells the trier of fact nothing about the defendant’s subjective state of mind. . . . [T]he presence of malice must be established by other, additional evidence. [¶] . . . [T]hat evidence must include proof of either actual hostility or ill will on the part of the defendant or a subjective intent to deliberately misuse the legal system for personal gain or satisfaction at the expense of the wrongfully sued defendant. 14 15 16 17 18 19 Downey Venture v. LMI Ins. Co., 66 Cal. App. 4th 478, 498–99 (1998) (footnote omitted). 20 Such allegations are missing here. Although Plaintiff alleges that Sergeant Michalke 21 acceded to charging Plaintiff with public intoxication to “go along with” two of the 22 arresting officers, see FAC at 5, there is no allegation that he did so out of any hostility or 23 ill will toward Plaintiff. Plaintiff’s fourth cause of action against Sergeant Michalke must 24 therefore fail. 25 Consequently, the Court GRANTS the Responding Defendants’ Motion and 26 DISMISSES WITHOUT PREJUDICE Plaintiff’s causes of action against Sergeant 27 Michalke. 28 /// 10 18-CV-515 JLS (MDD) 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS Defendants’ Motion (ECF No. 17) and 3 DISMISSES WITHOUT PREJUDICE Plaintiff’s First Amended Complaint as to 4 Defendants Sheriff William D. Gore and Sergeant Paul Michalke. Because the dismissal 5 is without prejudice, Plaintiff MAY FILE a Second Amended Complaint within thirty (30) 6 days of the electronic docketing of this Order. Should Plaintiff fail to file an amended 7 complaint, dismissal of Plaintiff’s claims as to Defendants Sheriff Gore and Sergeant 8 Michalke shall be with prejudice. 9 The Court also notes that Plaintiff has failed to serve Defendants Detective Jesus 10 Lizarraga, Detective B. Shea, Detective M. Snelling, Deputy K. Racine, and Rural/Metro 11 Fire Paramedics Services E. Lancaster. Consequently, the Clerk of the Court SHALL 12 ISSUE a summons as to Plaintiff’s First Amended Complaint (ECF No. 15) upon 13 Defendants and forward it to Plaintiff along with a blank U.S. Marshal Form 285. The 14 Clerk of the Court SHALL PROVIDE Plaintiff with a certified copy of his First Amended 15 Complaint (ECF No. 15) and a summons so that he may serve the Defendants. Once he 16 receives this “IFP Package,” Plaintiff SHALL COMPLETE Form 285 as completely and 17 accurately as possible, including an address where Defendants may be found and/or subject 18 to service pursuant to Civil Local Rule 4.1(c) and returning it to the United States Marshal 19 according to the instructions the Clerk of the Court provides in the letter accompanying his 20 IFP package. Upon receipt of Plaintiff’s completed Form 285, the U.S. Marshal timely 21 SHALL SERVE a copy of Plaintiff’s First Amended Complaint and summons upon 22 Defendants as directed by Plaintiff, with all costs advanced by the United States. See 28 23 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). Once they have been served, Defendants 24 SHALL RESPOND to Plaintiff’s First Amended Complaint within the time provided by 25 the applicable provisions of Federal Rule of Civil Procedure 12(a). 26 Should Plaintiff elect to file a Second Amended Complaint, the Clerk of the Court 27 SHALL ISSUE a new summons and all parties SHALL ABIDE by the above procedure. 28 /// 11 18-CV-515 JLS (MDD) 1 2 3 Failure timely to serve any unserved Defendants may result in dismissal without prejudice of Plaintiff’s claims as to those Defendants. IT IS SO ORDERED. 4 5 Dated: November 27, 2018 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 18-CV-515 JLS (MDD)

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