Hernandez v. Williams

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LINO HERNANDEZ, Case No.: 21-cv-944-WQH-KSC

12 Plaintiff, ORDER 13 v. 14 DR. NATHAN WILLIAMS; DR. STEPKE; DR. NASIR; and DR. ERICA 15 ESTOCK, 16 Defendants. 17 HAYES, Judge: 18 On May 17, 2021, Plaintiff Lino Hernandez initiated this action by filing a 19 Complaint. (ECF No. 1). On August 12, 2021, Plaintiff filed an Amended Complaint 20 (“FAC”). (ECF No. 10). 21 On August 27, 2021, Plaintiff filed a Motion to Proceed In Forma Pauperis. (ECF 22 No. 14). On September 22, 2021, the Court issued an Order granting the Motion to Proceed 23 In Forma Pauperis. (ECF No. 16). In that Order, the Court conducted a sua sponte screening 24 of the FAC pursuant to 28 U.S.C. § 1915(e)(2) and determined that “Plaintiff’s Eighth 25 Amendment allegations against Defendants are sufficient to survive the ‘low threshold’ set 26 for sua sponte screening.” (Id. at 4). 27 28 1 On November 3, 2021, Plaintiff sent Defendants a request for waiver of service of 2 summons of the FAC, and on November 19, 2021, all Defendants waived service of 3 summons. (See ECF Nos. 25-28). 4 On December 8, 2021, Plaintiff Lino Hernandez filed the operative Second 5 Amended Complaint (“SAC”). (ECF No. 29). On April 27, 2022, the Magistrate Judge 6 issued an Order that stated that “for reasons unknown to the Court, despite waiving service 7 defendants have neither appeared nor responded to the SAC.” (ECF No. 35 at 2). On May 8 23, 2022, the Court issued an Order to Show Cause to Defendants. (ECF No. 36). The 9 Order to Show Cause stated that “[m]ore than sixty days have elapsed, and Defendants 10 have not responded to the SAC.” (Id. at 2). The Order to Show Cause required Defendants 11 to show cause “as to why default should not be entered.” (Id. at 2). 12 On June 22, 2022, Defendants filed a Response, offering two reasons for having not 13 responded to the SAC. The first is that “Defendants have not been properly served with the 14 SAC, and have yet to waive service of the SAC.” (ECF No. 38 at 2). The second is that 15 “the Court has yet to screen the SAC as required by the PLRA, and Defendants were under 16 the impression that they were not obligated to respond before the SAC was screened.” (Id. 17 at 1-2). Defendants “request 21 days to file an answer or other responsive pleading.” (Id. 18 at 2). 19 Service of the SAC is governed by Rule 5 of the Federal Rules of Civil Procedure. 20 See Fed. R. Civ. P. 5(a)(1) (“[E]ach of the following papers must be served on every party: 21 … a pleading filed after the original complaint ….”); Emp. Painters’ Trust v. Ethan Ents., 22 Inc., 480 F.3d 993, 999 (9th Cir. 2007) (stating that service of an amended complaint is 23 ordinarily governed by Rule 5, not Rule 4). Service under Rule 5 is made on the attorney 24 of a represented party and can be accomplished by “filing [the paper] with the court's 25 electronic-filing system.” Fed. R. Civ. P. 5(b); see also S.D. Cal. CivLR 5.4(b). The docket 26 reflects that the SAC was filed on the Court’s electronic-filing system and that Defendants 27 are represented by an attorney who is a registered user. Defendants’ position that they 28 1 || “have not been properly served with the SAC, and have yet to waive service of the SAC” 2 ||is unfounded and does not justify Defendants’ failure to respond to the SAC. 3 On the same day that Defendants filed their Response to the Order to Show Cause, 4 || Defendants also filed a Motion for Screening of the SAC. (ECF No. 37). On June 30, 2022, 5 Magistrate Judge issued an Order denying the Motion for Screening of the SAC. (ECF 6 || No. 39). In the Order, the Magistrate Judge stated that the Court is authorized to dismiss 7 ||the SAC at any time if it finds the allegations are frivolous or fail to state a claim. However, 8 U.S.C. § 1915A “does not require a court, either explicitly or implicitly, to screen every 9 || time a plaintiff seeks to amend the complaint” and “Defendants’ contrary position has been 10 ||/repeatedly rejected by courts in this District.” (ECF No. 39 at 4 (quoting Olausen vy. 11 || Murguria, No. 3:13-cv-00388-MMD-VPC, 2014 WL 6065622, at *3 (D. Nev. Nov. 12, 12 |/2014))). 13 While screening is not required, Defendant’s contentions regarding screening 14 || demonstrate a good faith basis for Defendants’ failure to respond. There is no evidence that 15 limited delay caused by Defendants’ inaction will prejudice Plaintiff. The Court finds 16 || that an extension of Defendants’ time to respond to the SAC is warranted pursuant to Rule 17 || 6(b)(1)(B) of the Federal Rules of Civil Procedure. 18 IT IS HEREBY ORDERED that Defendants Williams, Stepke, Nasir, and Estock 19 file an answer or other response to the Second Amended Complaint no later than 20 fourteen (14) days from the date of this Order. 21 || Dated: July 12, 2022 BME: ie Z. Ma 22 Hon. William Q. Hayes 23 United States District Court 24 25 26 27 28