Jones v. Pollard

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HENRY A. JONES, JR. Case No.: 21cv0162-MMA (RBM) CDCR #P-69574, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS v. AND GRANTING MOTION FOR AN 14 EXTENTION OF TIME TO SERVE MARCUS POLLARD, Warden, 15 DEFENDANTS KATHLEEN ALLISON, Secretary,

16 Defendants. [Doc. Nos. 16, 18] 17 18 19 On January 27, 2021, Henry A. Jones, Jr. (“Plaintiff”), a state prisoner incarcerated 20 at the R. J. Donovan Correctional Facility (“RJD”), in San Diego, California, proceeding 21 pro se, filed a civil rights complaint pursuant 42 U.S.C. § 1983 along with a motion to 22 proceed in forma pauperis. See Doc. Nos. 1-2. Plaintiff claims Defendants were 23 deliberately indifferent to his health and safety in violation of the Eighth Amendment 24 based on their decision to use the mental health building at RJD, where Plaintiff is 25 housed, to quarantine inmates infected with Covid-19, thereby exposing him to the virus, 26 with which he was infected. See Doc. No. 1 at 3-4, 12-14. 27 On February 4, 2021, the Court denied Plaintiff’s motion to proceed in forma 28 pauperis on the basis that he has had at least three prior prisoner civil actions dismissed 1 on the grounds that they were frivolous, malicious, or failed to state a claim upon which 2 relief may be granted. See Doc. No. 5. Plaintiff subsequently paid the filing fee. See 3 Doc. No. 9. On June 16, 2021, the Court screened the Complaint pursuant to the 4 provisions of 28 U.S.C. § 1915A. See Doc. No. 10. That provision “mandates early 5 review—‘before docketing () or () as soon as practicable after docketing-for all 6 complaints ‘in which a prisoner seeks redress from a governmental entity or officer or 7 employee of a governmental entity.’” Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 8 2016) (quoting 28 U.S.C. § 1915A(a)). 9 The Court found Plaintiff states a plausible claim sufficient to survive the “low 10 threshold” set for sua sponte screening under 28 U.S.C. § 1915A(b) as to Defendants 11 Warden Pollard and Secretary Allison. See Doc. No. 10 at 3. The Court directed the 12 Clerk of Court to issue the Summons and informed Plaintiff of the requirements for 13 service of the Summons and Complaint on those two Defendants. Id. at 4-5. The Court 14 notified Plaintiff that the 90-day period in which to timely serve the Summons and 15 Complaint on those Defendants had been tolled while his Complaint was in screening and 16 that it began to run on the date the screening Order issued, June 16, 2021, which was also 17 the date the Summons issued. Id. at 5, n.1. Accordingly, the 90-day service period is set 18 to expire on September 14, 2021. See Fed. R. Civ. P. 4(m). 19 On July 22, 2012, Plaintiff filed a Motion to proceed in forma pauperis and a 20 Motion requesting an extension of time to serve Defendants. See Doc. Nos. 16, 18. The 21 Court DENIES Plaintiff’s Motion to proceed in forma pauperis for the reasons set forth 22 in the Court’s February 4, 2021 Order denying his original in forma pauperis application, 23 namely, that Plaintiff is ineligible to proceed in forma pauperis because he has had at 24 least three prior prisoner civil actions dismissed on the grounds that they were frivolous, 25 malicious, or failed to state a claim upon which relief may be granted. See Doc. No. 5 at 26 3-7. 27 Plaintiff’s Motion for an extension of time to serve the Defendants indicates that 28 although he is financially able to pay the service fees and is willing to do so he has 1 |}encountered obstacles in having the funds taken from his inmate trust account. See Doc. 2 ||No. 18 at 3. He requests an extension of “no more than 45 days.” /d. at 1. The Court has 3 || discretion to extend the time for service of the Summons and Complaint for “good cause” 4 || where the moving party requests an extension before the applicable deadline expires. 5 || Fed. R. Civ. P. 6(b)(1)(A). That Rule must be “liberally construed to effectuate the 6 || general purpose of seeing that cases are tried on the merits.” Ahanchian v. Xenon 7 || Pictures, Inc., 624 F.3d 1253, 1255 (9th Cir. 2010). 8 The Court finds Plaintiff’s request is timely and that he has shown good cause for 9 ||an extension. Accordingly, the Court GRANTS Plaintiff's Motion for an extension of 10 to serve the Summons and Complaint on Defendants and extends that deadline for 11 forty-five (45) days requested by Plaintiff to October 29, 2021. 12 Conclusion and Orders 13 The Court DENIES Plaintiff's Motion for to proceed in forma pauperis (Doc. No. 14 and GRANTS Plaintiff's Motion for an extension of time to serve Defendants (Doc. 15 ||No. 18). Plaintiff must serve Defendants Warden Pollard and Secretary Allison on or 16 || before October 29, 2021 and file proof of that service pursuant to Fed. R. Civ. P. 4(1), 17 || file a waiver pursuant to Fed. R. Civ. P. 4(d) within that time, or face dismissal for failure 18 || to prosecute pursuant to Fed. R. Civ. P. 4(m). 19 IT IS SO ORDERED. 20 || DATE: July 28, 2021 MM ° , Ma _ ( / Vp, □ 21 HON. MICHAEL M. ANELLO 9 United States District Judge 23 24 25 26 27 28 3 ee