1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES CHATMAN, Case No.: 21-CV-283 JLS (MDD) CDCR #P-99062, 12 ORDER GRANTING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. FOR PURPOSES OF U.S. MARSHAL 14 SERVICE PURSUANT TO E.M. SAUCEDO, Correctional 15 28 U.S.C. § 1915(d) AND FEDERAL Lieutenant, and MANAIG, RULE OF CIVIL PROCEDURE 16 Correctional Nurse, 4(c)(3) 17 Defendants. (ECF No. 24) 18
19 Presently before the Court is Plaintiff Charles Chatman’s (“Plaintiff” or “Chatman”) 20 Motion to Proceed in Forma Pauperis (“IFP”) (“IFP Mot.,” ECF No. 24). Having 21 considered Plaintiff’s Motion and the law, the Court GRANTS the IFP Motion for 22 purposes of U.S. Marshal service only, for the reasons provided below. 23 BACKGROUND 24 On February 12, 2021, Plaintiff, a state prisoner proceeding pro se, filed this civil 25 rights action pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff claimed 26 that, while housed at Centinela State Prison in San Diego, California (“Centinela”), he 27 received inadequate medical care, was retaliated against, had mail and personal property 28 / / / 1 stolen, and was denied due process in connection with a disciplinary charge. See id. at 4– 2 14. 3 This case was initially dismissed due to Plaintiff’s failure to prepay the civil filing 4 fee or qualify to proceed IFP. See ECF No. 7. After several extensions of time, Plaintiff 5 paid the civil filing fee. See ECF No. 9. Accordingly, on October 27, 2021, the Court 6 screened the Complaint pursuant to 28 U.S.C. § 1915A(b), which requires sua sponte 7 dismissal of a prisoner’s complaint, or any portion of it, that is frivolous, is malicious, fails 8 to state a claim, or seeks damages from immune defendants. See ECF No. 13. The Court 9 found Plaintiff’s Complaint failed to state a claim upon which relief may be granted, 10 informed Plaintiff of the deficiencies of pleading, and granted Plaintiff leave to amend on 11 or before December 13, 2021. Id. at 6–18. 12 After two extensions of time, Plaintiff timely filed a First Amended Complaint 13 (“FAC”) on May 9, 2022, see ECF No. 21, accompanied by a motion for an extension of 14 time to file the FAC one day late, see ECF No. 20. On June 14, 2022, the Court denied the 15 motion for extension of time as moot and screened the FAC. See ECF No. 22. The Court 16 dismissed all claims against all Defendants with prejudice and without further leave to 17 amend, except Plaintiff’s Eighth Amendment deliberate indifference to medical care claim 18 against Defendant Nurse Manaig and Plaintiff’s Fourteenth Amendment due process claim 19 against Defendant Saucedo. See id. at 16. The Court directed the Clerk of Court to issue 20 a summons upon those Defendants and notified Plaintiff that, because he was not 21 proceeding IFP, he was not automatically entitled to United States Marshal Service and 22 was responsible for having the summons and FAC served within 90 days of the date of the 23 June 14, 2022, Order. See id. at 16–17 & 17 n.2. 24 On June 14, 2022, the Clerk issued a summons as to Plaintiff’s FAC as required by 25 Federal Rule of Civil Procedure 4(b). See ECF No. 23. However, no proof of service has 26 been filed to date. Rather, on July 5, 2022, Plaintiff filed the instant IFP Motion. See IFP 27 Mot. 28 / / / 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 Because Plaintiff’s IFP Motion indicates he currently has no funds in his prison trust 3 account, and he has already paid the civil filing required to commence this action but has 4 yet to serve any Defendant, the Court construes the motion as one seeking IFP status for 5 purposes of United States Marshal service only. See 28 U.S.C. § 1915(d) (“The officers of 6 the court shall issue and serve all process, and perform all duties in [in forma pauperis] 7 cases.”); Fed. R. Civ. P. 4(c)(3) (“At the plaintiff’s request, the court may order that service 8 be made by a United States Marshal or deputy marshal or by a person specially appointed 9 by the court. The court must so order if a plaintiff is authorized to proceed in forma 10 pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.”). 11 Although Plaintiff paid the initial $402 civil and administrative filing fee, see ECF 12 No. 9, he may still be eligible to proceed IFP. As a practical matter, a request to proceed 13 IFP is almost always filed at the onset of the case. See 28 U.S.C. § 1915(a) (“[A]ny court 14 of the United States may authorize the commencement, prosecution or defense of any suit, 15 action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or 16 security therefore . . . .”). But an IFP request need not be filed at any particular time and 17 may be initiated at any stage of a proceeding, since a person who is not an indigent when 18 he first files a suit may become one during or prior to its prosecution. See Stehouwer v. 19 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (“IFP status may be acquired or lost 20 throughout the course of the litigation . . . .”), aff’d in pertinent part sub. nom Olivares v. 21 Marshall, 59 F.3d 109 (9th Cir. 1995). 22 The Court now finds Plaintiff’s IFP Motion, when considered in light of Plaintiff’s 23 pro se and incarcerated status, is sufficient to demonstrate that, since the commencement 24 of this action, Plaintiff has become financially unable to execute service upon the 25 Defendants on his own behalf and to timely pursue the prosecution of his case. Indeed, 26 had Chatman filed a motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) at the onset of 27 this litigation, the Court would have automatically directed the U.S. Marshal to effect 28 service on his behalf. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 1 CONCLUSION 2 In light of the foregoing, the Court: 3 1. GRANTS Plaintiff’s IFP Motion (ECF No. 24) pursuant to 28 U.S.C. 4 § 1915(d) and Federal Rule of Civil Procedure 4(c)(3) for purposes of U.S. Marshal service 5 only; 6 2. DIRECTS the Clerk of the Court to reissue a summons upon Defendants 7 Nurse Manaig and E.M. Saucedo as identified in Plaintiff’s First Amended Complaint 8 (ECF No. 21) and forward the summons to Plaintiff along with a blank U.S. Marshal Form 9 285 for each of these Defendants. In addition, the Clerk of the Court SHALL PROVIDE 10 Plaintiff with certified copies of this Order, Plaintiff’s First Amended Complaint, and the 11 reissued summons. Upon receipt of this “IFP Package,” Plaintiff must complete the U.S.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES CHATMAN, Case No.: 21-CV-283 JLS (MDD) CDCR #P-99062, 12 ORDER GRANTING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. FOR PURPOSES OF U.S. MARSHAL 14 SERVICE PURSUANT TO E.M. SAUCEDO, Correctional 15 28 U.S.C. § 1915(d) AND FEDERAL Lieutenant, and MANAIG, RULE OF CIVIL PROCEDURE 16 Correctional Nurse, 4(c)(3) 17 Defendants. (ECF No. 24) 18
19 Presently before the Court is Plaintiff Charles Chatman’s (“Plaintiff” or “Chatman”) 20 Motion to Proceed in Forma Pauperis (“IFP”) (“IFP Mot.,” ECF No. 24). Having 21 considered Plaintiff’s Motion and the law, the Court GRANTS the IFP Motion for 22 purposes of U.S. Marshal service only, for the reasons provided below. 23 BACKGROUND 24 On February 12, 2021, Plaintiff, a state prisoner proceeding pro se, filed this civil 25 rights action pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff claimed 26 that, while housed at Centinela State Prison in San Diego, California (“Centinela”), he 27 received inadequate medical care, was retaliated against, had mail and personal property 28 / / / 1 stolen, and was denied due process in connection with a disciplinary charge. See id. at 4– 2 14. 3 This case was initially dismissed due to Plaintiff’s failure to prepay the civil filing 4 fee or qualify to proceed IFP. See ECF No. 7. After several extensions of time, Plaintiff 5 paid the civil filing fee. See ECF No. 9. Accordingly, on October 27, 2021, the Court 6 screened the Complaint pursuant to 28 U.S.C. § 1915A(b), which requires sua sponte 7 dismissal of a prisoner’s complaint, or any portion of it, that is frivolous, is malicious, fails 8 to state a claim, or seeks damages from immune defendants. See ECF No. 13. The Court 9 found Plaintiff’s Complaint failed to state a claim upon which relief may be granted, 10 informed Plaintiff of the deficiencies of pleading, and granted Plaintiff leave to amend on 11 or before December 13, 2021. Id. at 6–18. 12 After two extensions of time, Plaintiff timely filed a First Amended Complaint 13 (“FAC”) on May 9, 2022, see ECF No. 21, accompanied by a motion for an extension of 14 time to file the FAC one day late, see ECF No. 20. On June 14, 2022, the Court denied the 15 motion for extension of time as moot and screened the FAC. See ECF No. 22. The Court 16 dismissed all claims against all Defendants with prejudice and without further leave to 17 amend, except Plaintiff’s Eighth Amendment deliberate indifference to medical care claim 18 against Defendant Nurse Manaig and Plaintiff’s Fourteenth Amendment due process claim 19 against Defendant Saucedo. See id. at 16. The Court directed the Clerk of Court to issue 20 a summons upon those Defendants and notified Plaintiff that, because he was not 21 proceeding IFP, he was not automatically entitled to United States Marshal Service and 22 was responsible for having the summons and FAC served within 90 days of the date of the 23 June 14, 2022, Order. See id. at 16–17 & 17 n.2. 24 On June 14, 2022, the Clerk issued a summons as to Plaintiff’s FAC as required by 25 Federal Rule of Civil Procedure 4(b). See ECF No. 23. However, no proof of service has 26 been filed to date. Rather, on July 5, 2022, Plaintiff filed the instant IFP Motion. See IFP 27 Mot. 28 / / / 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 Because Plaintiff’s IFP Motion indicates he currently has no funds in his prison trust 3 account, and he has already paid the civil filing required to commence this action but has 4 yet to serve any Defendant, the Court construes the motion as one seeking IFP status for 5 purposes of United States Marshal service only. See 28 U.S.C. § 1915(d) (“The officers of 6 the court shall issue and serve all process, and perform all duties in [in forma pauperis] 7 cases.”); Fed. R. Civ. P. 4(c)(3) (“At the plaintiff’s request, the court may order that service 8 be made by a United States Marshal or deputy marshal or by a person specially appointed 9 by the court. The court must so order if a plaintiff is authorized to proceed in forma 10 pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.”). 11 Although Plaintiff paid the initial $402 civil and administrative filing fee, see ECF 12 No. 9, he may still be eligible to proceed IFP. As a practical matter, a request to proceed 13 IFP is almost always filed at the onset of the case. See 28 U.S.C. § 1915(a) (“[A]ny court 14 of the United States may authorize the commencement, prosecution or defense of any suit, 15 action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or 16 security therefore . . . .”). But an IFP request need not be filed at any particular time and 17 may be initiated at any stage of a proceeding, since a person who is not an indigent when 18 he first files a suit may become one during or prior to its prosecution. See Stehouwer v. 19 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (“IFP status may be acquired or lost 20 throughout the course of the litigation . . . .”), aff’d in pertinent part sub. nom Olivares v. 21 Marshall, 59 F.3d 109 (9th Cir. 1995). 22 The Court now finds Plaintiff’s IFP Motion, when considered in light of Plaintiff’s 23 pro se and incarcerated status, is sufficient to demonstrate that, since the commencement 24 of this action, Plaintiff has become financially unable to execute service upon the 25 Defendants on his own behalf and to timely pursue the prosecution of his case. Indeed, 26 had Chatman filed a motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) at the onset of 27 this litigation, the Court would have automatically directed the U.S. Marshal to effect 28 service on his behalf. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 1 CONCLUSION 2 In light of the foregoing, the Court: 3 1. GRANTS Plaintiff’s IFP Motion (ECF No. 24) pursuant to 28 U.S.C. 4 § 1915(d) and Federal Rule of Civil Procedure 4(c)(3) for purposes of U.S. Marshal service 5 only; 6 2. DIRECTS the Clerk of the Court to reissue a summons upon Defendants 7 Nurse Manaig and E.M. Saucedo as identified in Plaintiff’s First Amended Complaint 8 (ECF No. 21) and forward the summons to Plaintiff along with a blank U.S. Marshal Form 9 285 for each of these Defendants. In addition, the Clerk of the Court SHALL PROVIDE 10 Plaintiff with certified copies of this Order, Plaintiff’s First Amended Complaint, and the 11 reissued summons. Upon receipt of this “IFP Package,” Plaintiff must complete the U.S. 12 Marshal Form 285s as completely and accurately as possible; include an address where 13 each Defendant may be served, see S.D. Cal. CivLR 4.1.c; and return them to the United 14 States Marshal according to the instructions the Clerk of the Court provides in the letter 15 accompanying the IFP Package; 16 3. ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint 17 and summons upon Defendant Nurse Manaig and E.M. Saucedo as directed by Plaintiff on 18 the U.S. Marshal Form 285 provided to him. All costs of that service will be advanced by 19 the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); 20 4. ORDERS Defendants, once served, to reply to Plaintiff’s First Amended 21 Complaint and any subsequent pleading Plaintiff files in this matter in which Defendants 22 are named as a party within the time provided by the applicable provisions of Federal Rules 23 of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (providing that, while 24 Defendants may occasionally be permitted to “waive the right to reply to any action 25 brought by a prisoner confined in any jail, prison, or other correctional facility under 26 section 1983,” once the Court has conducted its sua sponte screening, Defendants are 27 required to respond); and 28 / / / 1 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 2 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 3 ||counsel, a copy of every further pleading, motion, or other document submitted for the 4 ||Court’s consideration pursuant to Federal Rule of Civil Procedure 5(b). Plaintiff must 5 |}include with every original document he seeks to file with the Clerk of the Court a 6 || certificate stating the manner in which a true and correct copy of that document has been 7 ||served on Defendants or their counsel and the date of that service. See S.D. Cal. CivLR 8 Any document received by the Court that has not been properly filed with the Clerk 9 || of the Court or fails to include a certificate of service upon Defendants, or their counsel, 10 || may be disregarded. 11 IT IS SO ORDERED. 12 || Dated: July 11, 2022 id tt f Lived 13 on. Janis L. Sammartino 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 ee