Driver v. Naranjo

Filing 13

ORDER Granting Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this c ase 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) [Doc. No. 11 ]. Signed by Judge Cathy Ann Bencivengo on 6/6/2024. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 BILLY DRIVER, CDCR #D-35391, Case No.: 3:24-cv-00166-CAB-DTF ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) AND DIRECTING U.S. MARSHAL TO EFFECT SERVICE PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. Civ. P. 4(c)(3) Plaintiff, 13 vs. 14 15 16 Dr. NARANJO, Psychiatrist, Defendant. 17 [Doc. No. 11] 18 19 20 Plaintiff Billy Driver, proceeding pro se and currently incarcerated at Salinas Valley 21 State Prison (“SVSP”), has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See 22 Compl., Doc. No. 1. 23 OVERVIEW 24 Plaintiff is a frequent litigator and alleges that while he was incarcerated at Richard 25 J. Donovan Correctional Facility (“RJD”) in December 2023 and January 2024, RJD staff 26 psychiatrist Naranjo refused to discontinue antipsychotic medication despite Plaintiff’s 27 complaints of suffering serious side effects. Id. at 1‒2. Plaintiff claims he is not psychotic, 28 /// 1 3:24-cv-00166-CAB-DTF 1 yet has been forced to take injections of the drug Invega™ since 2019.1 Id. at 2. Plaintiff 2 acknowledges he is currently suing another psychiatrist in a similar suit filed in the 3 Northern District of California,2 but in this case he specifically contends Dr. Naranjo twice 4 threatened to use force if he refused Invega injections at RJD—once on December 19, 5 2023, and again on January 16, 2024—just two days before he filed his Complaint in this 6 Court. Id. at 2. On both those occasions, Plaintiff alleges he reported “severe” and 7 “chronic” side effects including chest pain, heart palpitations, and kidney pain, but Dr. 8 Naranjo “stated in a loud voice that No! He was not going to take [him] off the drug 9 Invega,” and warned Plaintiff he would be “physically forced to take [the] injection” if he 10 continued to refuse. Id. Plaintiff seeks both declaratory and injunctive relief requiring 11 Naranjo to “immediately tak[e] [him] off the drug,” and more than $50 million in damages. 12 Id. at 3. 13 Plaintiff did not pay the filing fee required to commence a new civil action when he 14 submitted his Complaint for filing with the Clerk of the Court on January 18, 2024.3 See 15 Doc. No. 1. Therefore, on February 21, 2024, the Court dismissed the case, but granted 16 Plaintiff leave to re-open it by either paying the $405 filing fee required by 28 U.S.C. 17 18 1 19 20 21 22 23 24 25 See (last visited June 5, 2024) (“Paliperidone extended-release injections (Invega Hafyera, Invega Sustenna, Invega Trinza) are used to treat schizophrenia (a mental illness that causes disturbed or unusual thinking, loss of interest in life, and strong or inappropriate emotions). Paliperidone extended-release injection (Invega Sustenna) is also used alone or with other medications to treat schizoaffective disorder (a mental illness that causes both a loss of contact with reality and mood problems [depression or mania]). Paliperidone extended-release injection is in a class of medications called atypical antipsychotics.” ). The Court may take judicial notice of medical facts regarding prescription drugs, their active ingredients and effects. See United States v. Howard, 381 F.3d 873, 880 & n.7 (9th Cir. 2004) (taking judicial notice of the narcotic effects of Percocet and Percodan noted in PDR); see also Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (“Wellknown medical facts are the types of matters of which judicial notice may be taken.”) (citation omitted)). 2 See Compl. at 2 (citing Driver v. Brahma, et al., Civil Case No. 3:23-cv-03426-JD (N.D. Cal. 2023)). 26 3 27 28 The case was assigned to the Honorable William Q. Hayes when it was filed, but re-assigned to the undersigned after Judge Hayes recused on February 8, 2024. See Doc. No. 4. Four days later, Plaintiff filed a notice of change of address indicating he had been transferred from RJD to SVSP in the interim. See Doc. No. 8. 2 3:24-cv-00166-CAB-DTF 1 § 1914(a), or filing a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 2 § 1915(a) within 45 days. See Doc. No. 10. On March 4, 2024, Plaintiff filed an IFP 3 Motion. See Doc. No. 11. 4 Plaintiff has had more than three civil actions or appeals dismissed as frivolous or 5 for failure to state a claim upon which relief can be granted; nevertheless, he alleges facts 6 to plausibly demonstrate imminent danger of serious physical injury at the time he filed his 7 Complaint. See Compl. at 1 (citing 28 U.S.C. § 1915(g)). Therefore, for the reasons 8 explained below, the Court GRANTS his Motion to Proceed IFP pursuant to 28 U.S.C. 9 § 1915(a) (Doc. No. 11), finds his Complaint states plausible claims for relief against Dr. 10 Naranjo, and DIRECTS the United States Marshal to effect service upon Dr. Naranjo 11 pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). 12 MOTION TO PROCEED IFP 13 All parties instituting any civil action, suit or proceeding in a district court of the 14 United States, except an application for writ of habeas corpus, must pay a filing fee of 15 $405.4 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay only if 16 the plaintiff requests and is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). 17 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). If the plaintiff is a prisoner 18 seeking to proceed IFP, section 1915(a)(2) also requires that he submit a “certified copy of 19 the trust fund account statement (or institutional equivalent) for ... the 6-month period 20 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). 21 From the certified trust account statement, the Court assesses an initial payment of 22 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 23 average monthly balance in the account for the past six months, whichever is greater, unless 24 the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) & (4). The institution collects 25 26 27 28 4 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). 3 3:24-cv-00166-CAB-DTF 1 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 2 which the account exceeds $10, and forwards those payments to the Court until the entire 3 filing fee is paid. See 28 U.S.C. § 1915(b)(2). In short, while prisoners may be granted 4 permission to prosecute their case without prepaying the filing fee in full and upfront, they 5 are nevertheless “required to pay the full amount of a filing fee” in installments. 28 U.S.C. 6 § 1915(b)(1); see also Bruce v. Samuels, 577 U.S. 82, 84 (2016); Taylor v. Delatoore, 281 7 F.3d 844, 847 (9th Cir. 2002). 8 In support of his IFP Motion, Plaintiff has submitted copies of his California 9 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report, as well 10 as a certificate of funds verified by a SVSP trust account officer. See Doc. No. 11 at 6‒9. 11 These documents show Plaintiff had an average monthly balance of $44.76, no monthly 12 deposits, and a current available balance of only $.19 at the time of filing. See id. at 6, 8. 13 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 11),5 and 14 15 5 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff admits he has been barred from proceeding IFP in the past by 28 U.S.C. § 1915(g), but seeks an exception in this case due to the “imminent danger” he claims to have faced at the time he filed his Complaint from RJD on January 18, 2024. See Compl. at 1. Pursuant to § 1915(g), a prisoner with three “strikes,” i.e., prior civil cases or appeals dismissed as frivolous, malicious, or for failing to state a claim, “cannot proceed IFP” unless he alleges to face “imminent danger of serious physical injury” at the time of filing. Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (quoting 28 U.S.C. § 1915(g)). “Implicit in the text of § 1915(g) is an understanding that the exception functions as a safety valve for a prisoner who has exhausted his three strikes but nevertheless faces imminent danger stemming from the violations of law alleged in his complaint.” Ray v. Lara, 31 F.4th 692, 700‒01 (9th Cir. 2022). This Court has confirmed Plaintiff has had at least four prior civil actions or appeals dismissed as frivolous, malicious, or because they failed to state a claim upon which relief could be granted. See, e.g., Driver v. Martel, No. CIVS081910GEBEFBP, 2009 WL 10700619, at *1 (E.D. Cal. Feb. 25, 2009) (“The court has reviewed plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and finds it does not state a cognizable claim against any defendant.”), adopted, Sept. 16, 2009 (ECF No. 32), aff’d, 395 F. App’x 392, 393 (9th Cir. 2010) (strike one); Driver v. Epp, No. 2:12-CV-0589 EFB P, 2012 WL 3862636, at *2 (E.D. Cal. Sept. 5, 2012) (“The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds that it must be dismissed failure to state a claim upon which relief may be granted.”) (strike two); Driver v. Kelso, No. 2:11-CV2397 EFB P, 2012 WL 3277080, at *2 (E.D. Cal. Aug. 9, 2012) (“The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds that the allegations are too vague and conclusory to state a cognizable claim for relief.”), aff’d, 514 F. App’x 662, 663 (9th Cir. 2013) (strike three); and Driver v. Zamora, No. CV 14-2170-BRO AGR, 2014 WL 4180783, at *4 (C.D. Cal. July 14, 2014) (Report and Recommendation to dismiss complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A), adopted, No. CV 14-2170-BRO AGR, 2014 WL 4180913 (C.D. Cal. Aug. 21, 2014), aff’d, 621 F. App’x 4 3:24-cv-00166-CAB-DTF 1 imposes no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). See 28 U.S.C. 2 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 3 civil action or appealing a civil action or criminal judgment for the reason that the prisoner 4 has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d 5 at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal 6 of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 7 available to him when payment is ordered.”). The total $350 due in this case will be 8 collected by the CDCR and forwarded to the Court until the entire fee is paid. See 28 9 U.S.C. § 1915(b)(2). 10 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) & 1915A(b) 11 A. 12 Because Plaintiff is a prisoner, his Complaint requires a preliminary screening 13 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(a). Under these statutes, the Court 14 must dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, 15 fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. 16 Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 17 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 Standard of Review 18 19 20 21 22 23 24 25 26 27 28 421 (9th Cir. 2015) (strike four). However, Plaintiff alleges that just two days before he filed his Complaint, he suffered from “severe chest pain,” heart palpitations, and kidney pain which he claimed were side effects from “the anti-psychotic drug Invega,” but Dr. Naranjo refused to “take[] [him] off [the] drug,” and instead threatened injection using physical force. See Compl. at 1‒2. Like the Eastern District of California, this Court finds Plaintiff’s “claim that Invega caused him to suffer from … chest pains and heart palpitations” suffices to meet the imminent danger exception to § 1915(g). Driver v. Kern County Superior Court, et al., No. 220CV1665JAMKJNP, 2021 WL 3488001, at *4 (E.D. Cal. July 15, 2021), report and recommendation adopted, 2021 WL 4894301 (E.D. Cal. Oct. 20, 2021); see also Bradford v. Marchak, 667 Fed. Appx. 616, 617 (9th Cir. 2016) (“Bradford plausibly alleged ‘imminent danger of serious physical injury’ given his allegations of chest pain, dizziness, blurred vision and headaches from ongoing involuntary psychotropic medication.”); see also Williams v. Paramo, 775 F.3d 1182, 1189‒1190 (9th Cir. 2015) (discussing court’s duty to liberally construe a prisoner’s “facial allegations” and determine if complaint “makes a plausible allegation” of imminent or ongoing danger at the time of filing); Andrews, 493 F.3d at 1056‒57 (imminent danger exception applies if a prisoner “alleges that prison officials continue with a practice that has injured him or others similarly situated in the past.”). 5 3:24-cv-00166-CAB-DTF 1 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous 2 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 3 903, 920 n.1 (9th Cir. 2014) (citation omitted). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 7 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 8 2012) (noting that screening pursuant to § 1915A(b) “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”). Federal Rules of Civil Procedure 8(a) and 12(b)(6) together require complaints 11 to “contain sufficient factual matter, accepted as true, to state a claim to relief that is 12 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks 13 omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but 14 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 15 statements, do not suffice.” Iqbal, 556 U.S. at 678. 16 “At the pleading stage, all allegations of material fact are taken as true and construed 17 in the light most favorable to the non-moving party.” In re Facebook, Inc. Internet 18 Tracking Litig., 956 F.3d 589, 601 (9th Cir. 2020). A claim is facially plausible “when the 19 plaintiff pleads factual content that allows the court to draw the reasonable inference that 20 the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. As such, the 21 plausibility standard is a “context-specific task that requires the reviewing court to [] draw 22 on its judicial experience and common sense.” Id. at 679. 23 Finally, the court notes its “obligation where the petitioner is pro se, particularly in 24 a civil rights case, to construe the pleadings liberally and to afford the petitioner the benefit 25 of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. 26 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). 27 /// 28 /// 6 3:24-cv-00166-CAB-DTF Plaintiff’s Allegations 1 B. 2 Plaintiff’s factual allegations are concise and straightforward: on December 19, 3 2023, and again on January 16, 2024, he claims RJD Psychiatrist Naranjo rejected his 4 requests to be “taken off the drug Invega” after Plaintiff reported to suffer “severe chest 5 pain(s),” “heart palpitations and kidney pain(s)” which he believed were caused by the 6 antipsychotic drug. See Compl. at 1‒2. Plaintiff claims he is not psychotic, that Dr. 7 Naranjo twice refused to discontinue the medication despite its reported side effects and 8 threatened him with injection by force if he continued to object. Id. at 2, 4. Plaintiff 9 contends he is in “chronic constant pain” due to the drug, and seeks money damages and 10 injunctive relief pursuant to 42 U.S.C. § 1983 “immediately tak[ing] [him] off.” Id. at 3.6 11 C. 12 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 13 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 14 386, 393–94 (1989) (citation omitted). “To state a claim under § 1983, a plaintiff must 15 allege two essential elements: (1) that a right secured by the Constitution or laws of the 16 United States was violated, and (2) that the alleged violation was committed by a person 17 acting under the color of State law.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 18 (9th Cir. 2021) (citing Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006)). 42 U.S.C. § 1983 19 D. 20 Plaintiff does not specify which constitutional right serves as the basis for his suit 21 against Dr. Naranjo, but he clearly alleges Naranjo ignored his reports of having suffered 22 severe side effects from the forced medication of an antipsychotic drug. A complaint “need 23 not identify the statutory or constitutional source of the claim raised in order to survive … Medical Care & Forced Medication Claims 24 25 26 27 28 The Court notes Plaintiff’s transfer from RJD to SVSP immediately after he filed suit moot his claims for injunctive relief with respect to Dr. Naranjo—the only named Defendant. “When a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (citing Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995)); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (claims for injunctive relief related to conditions of confinement were moot where prisoner was transferred to another facility”). 6 7 3:24-cv-00166-CAB-DTF 1 dismiss[al],” Alvarez v. Hill, 518 F.3d 1152, 1157‒58 (9th Cir. 2008), so long as it contains 2 factual allegations sufficient to state a plausible claim for relief. Hebbe, 627 F.3d at 341‒ 3 42. As pleaded, the Court finds Plaintiff’s Complaint contains “sufficient factual matter, 4 accepted as true” to state plausible claims for relief pursuant to 42 U.S.C. § 1983 against 5 Dr. Naranjo. Iqbal, 556 U.S. at 678. 6 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 7 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 8 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 9 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 10 A determination of “deliberate indifference” involves an examination of two elements: the 11 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 12 that need. Id. at 1059. A prison official is deliberately indifferent if he or she knows that 13 a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 14 reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 15 The Supreme Court has also recognized a liberty interest in freedom from unwanted 16 antipsychotic drugs. Washington v. Harper, 494 U.S. 210, 221‒22 (1990); United States 17 v. Ruiz-Gaxiola, 623 F.3d 684, 691 (9th Cir. 2010). For convicted inmates, or those 18 awaiting trial, the “liberty interest in avoiding unwanted medication must be defined in the 19 context of the inmate’s confinement.” United States v. Loughner, 672 F.3d 731, 745 (9th 20 Cir. 2012) (citing Harper, 494 U.S. at 222). Only if it is determined that an inmate is a 21 danger to himself or others, and treatment in his medical interest, does the Due Process 22 Clause allow the State to treat an inmate with serious mental illness with antipsychotropic 23 drugs against his will. See Harper, 494 U.S. at 227; Riggins v. Nevada, 504 U.S. 127, 135 24 (1992). This requires a neutral factfinder to evaluate whether the antipsychotic drugs are 25 medically appropriate and if the circumstances justify their application. See Kulas v. 26 Valdez, 159 F.3d 453, 455‒56 (9th Cir. 1998); Harper, 494 U.S. at 233 (administration of 27 antipsychotic drugs “cannot withstand challenge if there are no procedural safeguards to 28 ensure the prisoner’s interests are taken into account.”). 8 3:24-cv-00166-CAB-DTF 1 The factual allegations Plaintiff asserts involving Dr. Naranjo meet these “threshold” 2 pleading requirements, and thus survive the Court’s sua sponte review pursuant to 28 3 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123. Therefore, the Court 4 will order the U.S. Marshal to effect service upon Defendant Naranjo on Plaintiff’s behalf. 5 See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and 6 perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that 7 service be made by a United States marshal or deputy marshal . . . if the plaintiff is 8 authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 9 CONCLUSION 10 For the reasons discussed, the Court: 11 1) 12 (Doc. No. 11). 13 2) GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) DIRECTS the Secretary of the CDCR, or his designee, to collect from 14 Plaintiff’s trust account the full $350 filing fee owed in monthly payments in an amount 15 equal to twenty percent (20%) of the preceding month’s income to the Clerk of the Court 16 each time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. 17 § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME 18 AND NUMBER ASSIGNED TO THIS ACTION. 19 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 20 on Jeff Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283- 21 0001, or by forwarding an electronic copy to 22 4) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (Doc. 23 No. 1) upon Defendant Naranjo and forward it to Plaintiff along with one blank U.S. 24 Marshal Form 285. In addition, the Clerk will provide Plaintiff with a copy of this Order, 25 a certified copy his Complaint, and the summons so that he may serve them upon Defendant 26 Naranjo. Upon receipt of the Clerk’s “IFP Package,” Plaintiff must complete the U.S. 27 Marshal Form 285 as completely and accurately as possible, include an address where Dr. 28 Naranjo may be served, see S.D. Cal. Civ. L.R. 4.1.c, and return it to the United States 9 3:24-cv-00166-CAB-DTF 1 Marshal according to the instructions the Clerk provides in the letter accompanying his IFP 2 package. 3 5) ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Complaint and 4 summons upon Dr. Naranjo as directed by Plaintiff on the USM Form 285, and to file an 5 executed waiver of personal service upon Defendant Naranjo with the Clerk of Court as 6 soon as possible after its return. Should Defendant Naranjo fail to return the U.S. Marshal’s 7 request for waiver of personal service within 90 days, the U.S. Marshal must instead file 8 the completed, but unexecuted Form USM 285 Process Receipt and Return with the Clerk 9 of the Court, include the date the summons, Complaint and request for waiver was mailed, 10 and indicate why service upon Dr. Naranjo was unsuccessful. All costs of service will be 11 advanced by the United States; however, if Defendant Naranjo is located within the United 12 States, and fails without good cause to sign and return the waiver requested by the Marshal 13 on Plaintiff’s behalf, the Court will impose upon Defendant any expenses later incurred in 14 making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 15 6) ORDERS Defendant Naranjo, once served, to respond to Plaintiff’s 16 Complaint, and any subsequent pleading Plaintiff may file in this matter in which Naranjo 17 is named as a Defendant, within the time provided by the applicable provisions of Federal 18 Rule of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (stating that while 19 a defendant may “waive the right to reply to any action brought by a prisoner confined in 20 any jail, prison, or other correctional facility under section 1983,” once the Court has 21 conducted its sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 22 thus, has made a preliminary determination based on the face on the pleading that Plaintiff 23 has a “reasonable opportunity to prevail on the merits,” defendant is required to respond). 24 7) ORDERS Plaintiff, after service has been made by the U.S. Marshal, to serve 25 by mail upon Defendant Naranjo, or if appearance has been entered by counsel, upon 26 Defendant’s counsel, a copy of every further pleading, motion, or other document 27 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 28 include with every original document he seeks to file with the Clerk of the Court, a 10 3:24-cv-00166-CAB-DTF 1 certificate stating the manner in which a true and correct copy of that document was served 2 on Defendant Naranjo, or his counsel, and the date of that service. See S.D. Cal. CivLR 3 5.2. Any document received by the Court which has not been properly filed with the Clerk, 4 or which fails to include a Certificate of Service upon Defendant Naranjo or his counsel, 5 may be disregarded. 6 7 IT IS SO ORDERED. Dated: June 6, 2024 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 3:24-cv-00166-CAB-DTF

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