Golden v. Ortiz

• Court: District Court, D. Nevada
• Decided: August 11, 2020
• Docket: 3:19-cv-00195
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CALVIN EARL GOLDEN, Case No. 3:19-cv-00195-MMD-WGC 7 Plaintiff, ORDER 8 v. 9 OROSZI, et al., 10 Defendants.

11 12 I. DISCUSSION 13 On May 1, 2020, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 14 1915A. (ECF No. 12.) The Court dismissed the complaint in its entirety, with leave to 15 amend. (Id.) Plaintiff has filed an amended complaint. (ECF No. 17.) Plaintiff was not 16 incarcerated when he filed the amended complaint. (ECF No. 9.) As such, the screening 17 requirements of 28 U.S.C. § 1915A do not apply to Plaintiff’s amended complaint. See 18 Olivas v. Nevada ex rel. Dep't of Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (holding “that 19 a court may screen a complaint pursuant to 28 U.S.C. § 1915A only if, at the time the 20 plaintiff files the complaint, he is ‘incarcerated or detained’”); cf. Jackson v. Fong, 870 21 F.3d 928, 937 (9th Cir. 2017) (holding that a “plaintiff who was a prisoner at the time of 22 filing his suit but was not a prisoner at the time of his operative complaint is not subject to 23 a [Prison Litigation Reform Act] exhaustion defense”). 24 Under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii), cases in which the plaintiff proceeds in 25 forma pauperis are subject to screening, and “the court shall dismiss the case at any time 26 if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to 27 state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 28 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); See Lopez 1|| v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (holding that this screening procedure 2|| applies to all actions filed in forma pauperis, whether or not the plaintiff is incarcerated). However, in this case, Plaintiff has paid the filing fee in full. (ECF No. 11.) Because 4|| Plaintiff was not incarcerated when he filed the amended complaint, and he paid the filing 5|| fee in full, this case is not subject to screening. 6 Accordingly, this case is removed from the screening pool and will proceed 7|| according to standard litigation practices. Plaintiff may proceed with service upon the 8|| Defendants. The Court will not assign this case to the Court’s Inmate Early Mediation 9|| Program at this time but may do so in the future if it appears that the program will assist the parties in resolving their dispute. UL. CONCLUSION 12 For the foregoing reasons, it is ordered that the Court accepts the amended 13|| complaint (ECF No. 17) as the operative complaint in the case. The Clerk of the Court will send Plaintiff a courtesy copy of the amended complaint. 15 It is further ordered that the Court will not screen the amended complaint, and this || case will proceed along a standard litigation track. 17 Pursuant to Federal Rule of Civil Procedure 4(m), Plaintiff must perfect service within 90 days from the date of this order. Plaintiff should carefully review the Federal 19|| Rules of Civil Procedure to ensure that he complies with the requirements of service, as 20|| well as all of the other requirements of the Federal Rules of Civil Procedure. 21 DATED THIS 11" day of August 2020. 22 — x AG MIRANDA M. DU 24 CHIEF UNITED STATES DISTRICT JUDGE 25 26 27 28