1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LINO HERNANDEZ, Case No.: 3:21-cv-0944-WQH-KSC CDCR #AF-8851, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED INFORMA PAUPERIS
15 [ECF No. 14]; AND DR. NATHAN WILLIAMS; 16 DR. NASIR; DR. STEPKE; (2) DIRECTING UNITED STATES 17 DR. ERIKA ESTOCK, MARSHAL SERVICE TO EFFECT 18 Defendants. SERVICE OF FIRST AMENDED COMPLAINT 19 20 21 22 23 24 I. Procedural History 25 On May 17, 2021, Lino Hernandez (“Plaintiff”), currently incarcerated at the 26 California State Prison – Los Angeles County (“CSP-LAC”) located in Lancaster, 27 California, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. 28 § 1983 (ECF No. 1). While Plaintiff was housed at CSP-LAC at the time he filed this 1 action, the named Defendants are prison officials at Calipatria State Prison (“CAL”). (See 2 Compl. at 1.) Instead of initially filing a Motion to Proceed In Forma Pauperis (“IFP”), 3 Plaintiff paid the entire initial $402 civil filing fee. Thus, the Court issued a summons as 4 to all named Defendants. (See ECF No. 6.) 5 Plaintiff has now filed a First Amended Complaint (“FAC”), as well as a Motion to 6 Proceed IFP. (See ECF Nos. 10, 14). 7 II. Plaintiff’s Motion to Proceed IFP 8 Because plaintiffs who prepay the civil filing fee are not considered to proceed IFP, 9 they are not automatically entitled to have the U.S. Marshal effect service on their behalf, 10 and they must do so within the 90 days provided by FED.R.CIV.P. 4 (m). Boudette v. 11 Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (absent a specific request and court order that 12 the U.S. Marshal effect service on their behalf pursuant to FED.R.CIV.P. 4(c)(2), persons 13 who prepay civil filing fees “remain[] responsible for timely service”). The Court will 14 construe Plaintiff’s Motion, see ECF No. 14, as a Motion to Proceed IFP for purposes of 15 service only. 16 FED.R.CIV.P. 4(c)(3) provides that “[a]t the request of the plaintiff . . . the court may 17 direct that service be effected by a United States marshal, deputy United States marshal, or 18 other person or officer specially appointed by the court for that purpose.” FED.R.CIV.P. 19 4(c)(3). In addition, as noted above, when plaintiffs are granted leave to proceed IFP, the 20 United States Marshal, upon order of the court, is authorized to serve the summons and 21 complaint on the pauper’s behalf. See 28 U.S.C. § 1915(d); Boudette, 923 F.2d at 757; 22 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1993). 23 Although Plaintiff has paid the $402 civil filing and administrative fee, he may still 24 be eligible to proceed IFP. A request to proceed IFP need not be filed at any particular 25 time, but may be initiated at any stage of a proceeding, since a person who is not an indigent 26 at the commencement of a suit may become one during or prior to its prosecution. See 27 Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (“IFP status may be 28 1 acquired or lost throughout the course of the litigation”), aff’d in pertinent part sub. nom, 2 Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). 3 The Court now finds that Plaintiff’s Motion to Proceed IFP is sufficient to show that 4 he, since the payment of filing fees and commencement of this action, has become unable 5 to execute the service of his own Summons and FAC. Accordingly, and in order to aid in 6 the timely administration of justice in this matter, he will now be permitted to proceed IFP 7 pursuant to FED.R.CIV.P. 4(c)(2) for purposes of service only. 8 Therefore, the Court will direct the U.S. Marshal to effect service of summons and 9 Plaintiff’s FAC on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 10 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) 11 (“[T]he court may order that service be made by a United States marshal or deputy marshal 12 ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 13 III. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) 14 A. Standard of Review 15 Because Plaintiff is a prisoner and is now proceeding IFP, the Court may conduct a 16 pre-answer screening pursuant to 28 U.S.C. Section 1915(e)(2). Under this statute, the 17 Court may sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 18 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 19 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 20 28 U.S.C. Section 1915(e)(2)). “The purpose of [screening] is ‘to ensure that the targets 21 of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. 22 Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, 23 Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 24 “The standard for determining whether a plaintiff has failed to state a claim upon 25 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 26 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 27 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 28 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 1 standard applied in the context of failure to state a claim under Federal Rule of Civil 2 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 3 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 4 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 5 1121. 6 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 7 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 8 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 9 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 10 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 11 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 12 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 13 B.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LINO HERNANDEZ, Case No.: 3:21-cv-0944-WQH-KSC CDCR #AF-8851, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED INFORMA PAUPERIS
15 [ECF No. 14]; AND DR. NATHAN WILLIAMS; 16 DR. NASIR; DR. STEPKE; (2) DIRECTING UNITED STATES 17 DR. ERIKA ESTOCK, MARSHAL SERVICE TO EFFECT 18 Defendants. SERVICE OF FIRST AMENDED COMPLAINT 19 20 21 22 23 24 I. Procedural History 25 On May 17, 2021, Lino Hernandez (“Plaintiff”), currently incarcerated at the 26 California State Prison – Los Angeles County (“CSP-LAC”) located in Lancaster, 27 California, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. 28 § 1983 (ECF No. 1). While Plaintiff was housed at CSP-LAC at the time he filed this 1 action, the named Defendants are prison officials at Calipatria State Prison (“CAL”). (See 2 Compl. at 1.) Instead of initially filing a Motion to Proceed In Forma Pauperis (“IFP”), 3 Plaintiff paid the entire initial $402 civil filing fee. Thus, the Court issued a summons as 4 to all named Defendants. (See ECF No. 6.) 5 Plaintiff has now filed a First Amended Complaint (“FAC”), as well as a Motion to 6 Proceed IFP. (See ECF Nos. 10, 14). 7 II. Plaintiff’s Motion to Proceed IFP 8 Because plaintiffs who prepay the civil filing fee are not considered to proceed IFP, 9 they are not automatically entitled to have the U.S. Marshal effect service on their behalf, 10 and they must do so within the 90 days provided by FED.R.CIV.P. 4 (m). Boudette v. 11 Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (absent a specific request and court order that 12 the U.S. Marshal effect service on their behalf pursuant to FED.R.CIV.P. 4(c)(2), persons 13 who prepay civil filing fees “remain[] responsible for timely service”). The Court will 14 construe Plaintiff’s Motion, see ECF No. 14, as a Motion to Proceed IFP for purposes of 15 service only. 16 FED.R.CIV.P. 4(c)(3) provides that “[a]t the request of the plaintiff . . . the court may 17 direct that service be effected by a United States marshal, deputy United States marshal, or 18 other person or officer specially appointed by the court for that purpose.” FED.R.CIV.P. 19 4(c)(3). In addition, as noted above, when plaintiffs are granted leave to proceed IFP, the 20 United States Marshal, upon order of the court, is authorized to serve the summons and 21 complaint on the pauper’s behalf. See 28 U.S.C. § 1915(d); Boudette, 923 F.2d at 757; 22 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1993). 23 Although Plaintiff has paid the $402 civil filing and administrative fee, he may still 24 be eligible to proceed IFP. A request to proceed IFP need not be filed at any particular 25 time, but may be initiated at any stage of a proceeding, since a person who is not an indigent 26 at the commencement of a suit may become one during or prior to its prosecution. See 27 Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (“IFP status may be 28 1 acquired or lost throughout the course of the litigation”), aff’d in pertinent part sub. nom, 2 Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). 3 The Court now finds that Plaintiff’s Motion to Proceed IFP is sufficient to show that 4 he, since the payment of filing fees and commencement of this action, has become unable 5 to execute the service of his own Summons and FAC. Accordingly, and in order to aid in 6 the timely administration of justice in this matter, he will now be permitted to proceed IFP 7 pursuant to FED.R.CIV.P. 4(c)(2) for purposes of service only. 8 Therefore, the Court will direct the U.S. Marshal to effect service of summons and 9 Plaintiff’s FAC on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall 10 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) 11 (“[T]he court may order that service be made by a United States marshal or deputy marshal 12 ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 13 III. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) 14 A. Standard of Review 15 Because Plaintiff is a prisoner and is now proceeding IFP, the Court may conduct a 16 pre-answer screening pursuant to 28 U.S.C. Section 1915(e)(2). Under this statute, the 17 Court may sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 18 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 19 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 20 28 U.S.C. Section 1915(e)(2)). “The purpose of [screening] is ‘to ensure that the targets 21 of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. 22 Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, 23 Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 24 “The standard for determining whether a plaintiff has failed to state a claim upon 25 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 26 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 27 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 28 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 1 standard applied in the context of failure to state a claim under Federal Rule of Civil 2 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 3 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 4 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 5 1121. 6 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 7 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 8 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 9 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 10 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 11 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 12 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 13 B. Eighth Amendment medical care claims 14 The Eighth Amendment requires that inmates have “ready access to adequate 15 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate 16 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle 17 v. Gamble, 429 U.S. 97, 104 (1976). Based on the allegations set forth in the FAC, the 18 Court finds that Plaintiff’s Eighth Amendment allegations against Defendants are sufficient 19 to survive the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. Section 20 1915(e)(2). See Wilhelm, 680 F.3d at 112. 21 IV. Conclusion and Orders 22 For the reasons discussed, the Court: 23 1) GRANTS Plaintiff’s Motion to Proceed IFP for purposes of service only 24 [ECF No. 14]; 25 2) DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 10) 26 and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each Defendant. 27 In addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified 28 copy of his FAC, and the summons so that he may serve the Defendants. Upon receipt of 1 || this “IFP Package,” Plaintiff must complete the Form 285 as completely and accurately as 2 || possible, include an address where the Defendants may be served, see S.D. Cal. CivLR 3 ||4.1.c, and return it to the United States Marshal according to the instructions the Clerk 4 || provides in the letter accompanying his IFP package; 5 3) ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon 6 Defendants as directed by Plaintiff on the USM Form 285 provided to him. All costs 7 || of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. 8 4(c)(3); 9 4) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 10 ||serve upon the Defendants, or, if appearance has been entered by counsel, upon 11 ||Defendants’ counsel, a copy of every further pleading, motion, or other document 12 ||submitted for the Court’s consideration pursuant to FED. R. Civ. P. 5(b). Plaintiff must 13 |}include with every original document he seeks to file with the Clerk of the Court, a 14 || certificate stating the manner in which a true and correct copy of that document has been 15 || served on the Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR 16 Any document received by the Court which has not been properly filed with the Clerk, 17 || or which fails to include a Certificate of Service upon the Defendants, may be disregarded. 18 IT IS SO ORDERED. 19 |} Dated: September 21, 2021 Nitta Ze. A a 20 Hon, William Q. Hayes 71 United States District Court 22 23 24 25 26 27 28 5 oe