1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 NATASHA HILDA NELSON, Case No.: 3:22-cv-00377-CAB-MDD CDCR #G-29865, 11 ORDER Plaintiff, 12 vs. 1) GRANTING MOTION TO 13 PROCEED IN FORMA PAUPERIS
14 [ECF No. 2] KATHLEEN ALLISON, Secretary, 15 CDCR; CONNIE GIBSON, Director of AND 16 Institutions; MARCUS POLLARD, Warden; RAQUEL BUCKEL, Chief 2) DIRECTING U.S. MARSHAL TO 17 Deputy Warden; EVERETT BENYARD, EFFECT SERVICE PURSUANT 18 Associate Warden; E. GARCIA, Captain; TO 28 U.S.C. § 1915(d) AND MARY ANN GLYNN, Chief Executive Fed. R. Civ. P. 4(c)(3) 19 Officer; L. COHEN, Senior Registered 20 Nurse, 21 Defendants. 22 23 Plaintiff Natasha Hilda Nelson, a transgender inmate incarcerated at Richard J. 24 Donovan Correctional Facility (“RJD”) in San Diego, California, has filed a pro se civil 25 rights Complaint pursuant 42 U.S.C. § 1983.1 See Compl., ECF No. 1. Plaintiff claims 26
27 1 Because Plaintiff identifies as transgender and uses the feminine pronouns she/her, the 28 1 California Department of Corrections and Rehabilitation (“CDCR”) Secretary Kathleen 2 Allison, CDCR Director of Institutions Connie Gibson, and RJD Warden Marcus Pollard, 3 Chief Deputy Warden Raquel Buckel, Associate Warden Everett Benyard, Captain E. 4 Garcia, Chief Executive Officer Mary Ann Glynn, and Senior Registered Nurse (“SRN”) 5 Cohen violated her First, Eighth, and Fourteenth Amendment rights in December 2019 6 and December 2020. See id. at 1‒3. Plaintiff seeks $500,000 in both general and punitive 7 damages as to each Defendant, and injunctive relief requiring adherence to proper Covid- 8 19 prevention policies and religious accommodations for Wiccan and practitioners of the 9 Northern Tradition (Odinists) at RJD. See id. at 18. 10 Plaintiff did not prepay the $402 civil filing fee required by 28 U.S.C. § 1914(a) at 11 the time of filing, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) 12 pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. 13 I. Motion to Proceed In Forma Pauperis 14 All parties instituting any civil action, suit or proceeding in a district court of the 15 United States, except an application for writ of habeas corpus, must pay a filing fee of 16 $402.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 17 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. 18 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 19 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 20 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 21 Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th 22 Cir. 2015), and regardless of whether her action is ultimately dismissed. See 28 U.S.C. 23 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 24 25 26 2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does 28 1 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 2 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 3 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 4 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 5 trust account statement, the Court assesses an initial payment of 20% of (a) the average 6 monthly deposits in the account for the past six months, or (b) the average monthly 7 balance in the account for the past six months, whichever is greater, unless the prisoner 8 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 9 custody of the prisoner then collects subsequent payments, assessed at 20% of the 10 preceding month’s income, in any month in which his account exceeds $10, and forwards 11 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 12 1915(b)(2); Bruce, 577 U.S. at 84. 13 In support of her IFP Motion, Plaintiff has submitted a copy of her CDCR Inmate 14 Statement Report and a prison certificate authenticated by a RJD Accounting Officer and 15 attesting as to her trust account activity pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. 16 Civ. L.R. 3.2. See ECF No. 2; Andrews, 398 F.3d at 1119. These documents show 17 although Plaintiff carried an average monthly balance of $348.05 and had $165.20 in 18 average monthly deposits to her trust account during the six months preceding the filing 19 of this action, she had an available balance of only $5.74 at the time of filing. See ECF 20 No. 2 at 1, 3. 21 Therefore, the Court grants Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 22 assesses a partial initial filing fee of $76.81 pursuant to 28 U.S.C. § 1915(b)(1), but 23 declines to order the collection of that initial fee at this time because her prison certificate 24 indicates she currently has “no means to pay it.” See 28 U.S.C. § 1915(b)(4) (providing 25 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing 26 a civil action or criminal judgment for the reason that the prisoner has no assets and no 27 means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding 28 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 1 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him 2 when payment is ordered.”). Instead, the Court directs the Secretary of the CDCR, or her 3 designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C. 4 § 1914 and to forward them to the Clerk of the Court pursuant to the installment payment 5 provisions set forth in 28 U.S.C. § 1915(b)(1). 6 II. Sua Sponte Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) 7 A. Standard of Review 8 Because Plaintiff is a prisoner and proceeding IFP, her Complaint requires a 9 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 10 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 11 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 12 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 13 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 14 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 15 the targets of frivolous or malicious suits need not bear the expense of responding.’” 16 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 17 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 18 “The standard for determining whether a plaintiff has failed to state a claim upon 19 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 20 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 21 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 22 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 23 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 24 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 25 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 26 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 27 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 28 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 1 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 2 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 3 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 4 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 5 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 6 (9th Cir. 2009). 7 B. Factual Allegations 8 Plaintiff divides her Complaints into three separate causes of action under Section 9 1983. Counts 1 and 2 relate to her exposure to and contraction of Covid-19 at RJD in 10 December 2020. Count 3 involves free exercise and religious accommodations for her 11 Wiccan faith arising in December 2019. See, e.g., Compl. at 4‒5 (Count 1); id. at 6‒12 12 (Count 2); id. at 13‒16. 13 1. Count 1 14 In Count 1, Plaintiff alleges CDCR Defendants Allison and Gibson violated both 15 her Eighth Amendment right to be free from cruel and unusual punishment and her 16 Fourteenth Amendment right to equal protection when they authorized the transfer of 17 inmates from the California Institution for Men (“CIM”) and San Quentin State Prison 18 (“SQSP”) to RJD, which is “classified as a high risk medical and transgender facility,” in 19 November and early December 2020. See Compl. at 4. Plaintiff alleges Allison and 20 Gibson did so “despite … advice and guidance from the Center for Disease Control and 21 Prevention” (“CDC”), and in direct contravention of an order issued by California’s 22 Governor to “stop all transfers after [a] SQSP outbreak.” Id. at 4‒5. Plaintiff alleges 23 RJD had “zero positive cases of Covid-19 among the inmate population” at the time, but 24 Allison and Gibson knowingly ignored the risk and sanctioned the transfer of inmates 25 from CIM, SQSP “and/or other Covid-19 hot spots” to RJD even after several transferees 26 tested positive and without first placing them in isolation or quarantine. Id. at 5. As a 27 result, Plaintiff, who is asthmatic and in a “high risk category,” together with “hundreds” 28 of other inmates and “numerous” correctional staff contracted the disease. Id. Plaintiff 1 alleges she suffered “intense anxiety,” worsened asthma and depression, feared she was 2 going to die, had difficulty breathing, and is now “showing signs of being a prediabetic.” 3 Id. Plaintiff contends Defendants Allison and Gibson acted with deliberate indifference 4 to her health and safety, and violated her right to equal protection because they “stately 5 publicly that they did these transfers to try to protect other inmates.” Id. 6 2. Count 2 7 In Count 2, Plaintiff focuses on the RJD Defendants and alleges they too violated 8 her Eighth Amendment rights by failing to enforce preventative correctional and health 9 care policies in Facility A Housing Unit 1 to protect her and others from contracting 10 Covid-19 in December 2020. See Compl. at 6‒12. Specifically, Plaintiff claims she was 11 informed by unidentified custody staff on December 5, 2020, that multiple inmates on 12 Facility A, Housing Unit 1 had tested positive for Covid-19. Id. at 6. At the time, 13 Plaintiff claims RJD “only had cloth face mask[s]” and failed to exchange them once 14 soiled, provided inadequate cleaning supplies, failed to implement social distancing 15 measures, allowed inmates who refused Covid-19 testing and who reported feeling sick 16 to work in the central kitchen and distribute food trays throughout the housing units, and 17 required inmates to congregate in pill lines instead of requiring nurses to “pack and pass” 18 medication for in-cell delivery. Id. at 6‒9. Plaintiff alleges she personally complained to 19 Defendant Benyard about the lack of and/or failure to enforce CDC and Covid-19 safety 20 protocols, and Benyard ensured her he would notify Defendants Pollard, Buckel, and 21 Garcia of Plaintiff’s concerns. Id. at 7, 8. After inmates were issued KN-95 masks on or 22 about December 13, 2022, but required to wear them even if damaged or soiled for weeks 23 at “the height of the outbreak,” Plaintiff alleges she and several fellow inmates again 24 complained, but this time to Defendant Garcia. Id. at 8. Plaintiff alleges Garcia 25 explained that inmates and staff “had a right to refuse” testing, and said he would “look 26 into the matter, but no corrective actions were ever taken.” Id. at 8. When Plaintiff asked 27 / / / 28 / / / 1 LVN Locke why “pack and pass” medication distribution had not been implemented, 2 Locke said it was due to SRN Cohen’s failure to “declare the Covid-19 outbreak an 3 emergency.” Id. at 8‒9. Plaintiff further alleges an unidentified member of the custody 4 staff told her while in the “pill line” that Defendants Pollard and Buckel “never even 5 developed an emergency action plan [in case] there was a Covid-19 outbreak at RJD[.]” 6 Id. at 10. 7 On December 17, 2020, Plaintiff tested positive for Covid-19 and was told she 8 would “being put on isolation status.” Id. at 9. At the time, Plaintiff claims 30 other 9 inmates who had previously tested positive were also on isolation status, but none, 10 including Plaintiff were moved. Instead, Plaintiff claims she and others were instead 11 quarantined in their current cells. Id. When Plaintiff reported difficulty breathing, severe 12 asthma attacks, vomiting, and headaches to the nursing staff, she claims they only “t[ook] 13 [her] temperature and vital signs.” Id. at 9. “No other treatment was ever provided or 14 offered,” and when Plaintiff inquired why her vitals were not being checked daily, she 15 was told she was “not on the list.” Id. When unidentified custody noticed she was in 16 respiratory distress and was coughing up fluid, they radioed for a Triage and Treatment 17 Area (“TTA”) emergent response team; however, an unidentified TTA nurse informed 18 Plaintiff there was no bed space, and instructed her to lay on her bunk, “try to get the 19 fluid out of her lungs,” and to “ride it out.” Id. at 11. 20 When Plaintiff filed a CDCR Health Care Appeal Form 602-HC “to try to obtain 21 medical treatment,” to get “medical to follow [] Covid-19 policies,” and to report the 22 “imminent risk to [her] health and safety” posed by her infection and the “ongoing 23 refusal” of Defendants Pollard, Buckel, Garcia, Glynn, and Cohen to follow Covid-19 24 protocols, her appeal was classified as a “regular, non-emergency appeal.” Id. at 9‒10. 25 26 27 28 1 Plaintiff claims this further endangered her health because “she could have died from not 2 receiving medical treatment as so many other inmates did.” Id. at 10. 3 In fact, Plaintiff alleges Defendants Pollard, Buckel, Benyard, and Garcia 4 “continued to act with deliberate indifference and a wanton disregard of [her] health and 5 safety by failing to correct the problems when they knew about them,” “even [held] a 6 food-sale fundraiser in the middle of the outbreak,” and “allow[ed] outside visitors to 7 come into RJD and pass out food.” Id. She further contends SRN Cohen “began to 8 fabricate documents and medical records to make it look as if inmates were refusing 9 Covid-19 medical treatment.” Id. at 12. 10 3. Count 3 11 In Count 3, Plaintiff switches gears and focuses on Defendant Allison, Gibson, 12 Pollard, Benyard, and Buckel’s alleged violations in 2019 of her First Amendment right 13 to free exercise and her Fourteenth Amendment right to equal protection in the practice of 14 her Wiccan faith.4 See id. at 13‒16. 15 Specifically, during the week of December 22‒28, 2019, and between the hours of 16 11:30 a.m. to 1:00 p.m., when all inmates are restricted to their cells unless participating 17 in the Enhanced Outpatient Program, at recreational therapy, or on C-status, Plaintiff 18 contends Defendants Pollard, Benyard, and Buckel authorized the Protestant Services 19 Praise and Worship Team to enter all 5 housing units in Facility A and to “us[e] band 20 instruments and microphones” to perform Christian worship songs. Id. at 13. On 21 December 24, 2019, Plaintiff contends the songs, beginning with Amazing Grace, were 22 23 24 4 “The Federal Rules of Civil Procedure permit a party to ‘join, as independent or 25 alternative claims, as many claims as it has against an opposing party.’” Garity v. APWU Nat’l Lab. Org., 828 F.3d 848, 855 n.5 (9th Cir. 2016) (quoting Fed. R. Civ. P. 18(a)). 26 “Once a party properly asserts its first claim, it may use that as a platform to assert any 27 other claim—related or unrelated—against that particular opposing party.” See 1 S. Gensler, FEDERAL RULES OF CIVIL PROCEDURE, RULES AND COMMENTARY, Rule 18, at 479 28 1 “so loud that [they] drowned out [her] television,” and could be heard through her 2 headphones. Id. Plaintiff claims she requested to be released to the outdoor religious 3 grounds for the duration, but was denied and “forced to ‘attend’” this Christian worship 4 service against her will” and in violation of the First Amendment. Id. 5 Plaintiff further alleges more generally that Defendants Allison, and Gibson 6 changed CDCR policy with respect to religious practice groups so that any religion can 7 use the same outdoor religious grounds and locker space for sacred items. Id. at 14. As a 8 well-documented Wiccan practitioner, Plaintiff claims the multi-faith use of these 9 grounds and lockers desecrates them such that Odinists and Wiccans “cannot freely 10 practice their respective religions.” Id. at 14‒15, 16. 11 Plaintiff also contends that while some beliefs are similar, Odinist and Wiccans 12 “do not practice the same,” yet Defendants Allison, Gibson, Pollard, Buckel, and 13 Benyard “actively discriminate” against them by “lump[ing]” the pagan traditions 14 together, “routinely cancelling their religious services,” and denying approval for 15 religious holidays and banquets, wheelchair access, and the tools to care for their outdoor 16 religious spaces. Id. at 15‒16. Plaintiff claims these policies violate both her First 17 Amendment right to free exercise of her faith, and her Fourteenth Amendment right to 18 equal protection because Defendants do not similarly “force all of the different Christian 19 religious groups to attend service together,” routinely allow Christian religious services, 20 and do not require Native Americans to share their ground keeping tools or sweat lodges. 21 Id. at 15. 22 C. Discussion 23 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 24 elements: (1) that a right secured by the Constitution or laws of the United States was 25 violated, and (2) that the alleged violation was committed by a person acting under the 26 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 27 1035‒36 (9th Cir. 2015). 28 / / / 1 As currently pleaded and liberally construed, the Court finds Plaintiff’s Complaint 2 contains plausible First, Eighth, and Fourteenth Amendment free exercise, cruel and 3 unusual punishment, and equal protection claims “sufficient to warrant ... an answer.” 4 Wilhelm, 680 F.3d at 1123; 28 U.S.C. §§ 1915(e)(2), 1915A(b). See also Helling v. 5 McKinney, 509 U.S. 25, 33 (1993) (prison officials may not “be deliberately indifferent 6 to the exposure of inmates to a serious, communicable disease”); Hutto v. Finney, 437 7 U.S. 678, 682‒83 (1978) (affirming a finding of an Eighth Amendment violation where a 8 facility housed individuals in crowded cells with others suffering from infectious 9 diseases, such as Hepatitis and venereal disease, and the individuals’ “mattresses were 10 removed and jumbled together each morning, then returned to the cells at random in the 11 evening”); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007) (recognizing a 12 cause of action under the Eighth Amendment and 42 U.S.C. § 1983 for an alleged policy 13 of not screening inmates for infectious diseases—HIV, Hepatitis C, and Heliobacter 14 pylori—and for housing contagious and healthy individuals together during a known 15 “epidemic of hepatitis C”); Maney v. Hall, 516 F. Supp. 2d 1161, 1179 (D. Or. Feb. 2, 16 2021) (citing cases recognizing prison officials’ duty to protect inmates from exposure to 17 communicable diseases under the Eighth Amendment); Hartmann v. Cal. Dept. of Corr. 18 and Rehab., 707 F.3d 1114, 1122‒24 (9th Cir. 2013) (discussing pleading requirements 19 for prisoner’s First Amendment free exercise and Fourteenth Amendment equal 20 protection claims); Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (to implicate the 21 Free Exercise Clause, a prisoner must allege that the belief at issue is both “sincerely 22 held” and “rooted in religious belief.”); Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 23 2008) (noting that the “sincerity test,” not the “centrality test,” applies to a free exercise 24 analysis); Jones v. Williams, 791 F.3d 1023, 1031‒32 (9th Cir. 2015) (a free exercise 25 claim in the prison context requires a plausible allegation that a government action 26 substantially burdens plaintiff’s practice of his religion). 27 Based on these precedents, the Court will direct the U.S. Marshal to effect service 28 upon the Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the 1 court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. 2 Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal 3 or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 4 U.S.C. § 1915.”).5 5 III. Conclusion and Orders 6 For the reasons discussed, the Court: 7 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 8 2) DIRECTS the Secretary of the CDCR, or her designee, to collect from 9 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 10 payments from her account in an amount equal to twenty percent (20%) of the preceding 11 month’s income and forwarding those payments to the Clerk of the Court each time the 12 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 13 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 14 ASSIGNED TO THIS ACTION. 15 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 16 on Kathleen Allison, Secretary, California Department of Corrections and Rehabilitation, 17 P.O. Box 942883, Sacramento, California, 94283-0001, or in the alternative by 18 forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 19 4) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 20 No. 1) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for 21 Defendants Allison, Gibson, Pollard, Buckel, Benyard, Garcia, Glynn, and Cohen. In 22 addition, the Clerk will provide Plaintiff with a certified copy of this Order, a certified 23 copy of her Complaint, and the summons so that she may serve these Defendants. Upon 24 25 26 5 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative 27 of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 28 1 receipt of this “IFP Package,” Plaintiff must complete the USM Form 285s as completely 2 and accurately as possible, include an address where each Defendant may be found 3 and/or subject to service, and return them to the United States Marshal according to the 4 instructions the Clerk provides in the letter accompanying her IFP package. 5 5) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 6 upon Defendants Allison, Gibson, Pollard, Buckel, Benyard, Garcia, Glynn, and Cohen 7 as directed by Plaintiff on the USM Form 285s provided to her, and file executed waivers 8 of personal service upon each Defendant with the Clerk of Court as soon as possible after 9 their return. Should any Defendant fail to return the U.S. Marshal’s request for waiver of 10 personal service, the U.S. Marshal shall instead file the completed Form USM 285 11 Process Receipt and Return with the Clerk of Court, include the date the summons, 12 Complaint, and request for waiver was mailed to that Defendant, and note that service 13 upon that party remains unexecuted. All costs of U.S. Marshal service will be advanced 14 by the United States; however, if a Defendant located within the United States fails, 15 without good cause, to sign and return the waiver requested by the Marshal on behalf of 16 Plaintiff, the Court will impose upon the Defendant any expenses later incurred in 17 making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3), (d)(2). 18 6) ORDERS Defendants Allison, Gibson, Pollard, Buckel, Benyard, Garcia, 19 Glynn, and Cohen, once served, to reply to Plaintiff’s Complaint, and any subsequent 20 pleading Plaintiff may file in this matter in which they are named as parties, within the 21 time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a) and 22 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted 23 to “waive the right to reply to any action brought by a prisoner confined in any jail, 24 prison, or other correctional facility under section 1983,” once the Court has conducted 25 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has 26 made a preliminary determination based on the face on the pleading alone that Plaintiff 27 has a “reasonable opportunity to prevail on the merits,” defendant is required to respond). 28 / / / 1 7) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 2 ||serve upon Defendants Allison, Gibson, Pollard, Buckel, Benyard, Garcia, Glynn, and 3 || Cohen, or if appearance has been entered by counsel, upon Defendants’ counsel, a copy 4 || of every further pleading, motion, or other document submitted for the Court’s 5 consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original 6 document he seeks to file with the Clerk of the Court, a certificate stating the manner in 7 || which a true and correct copy of that document has been was served on Defendants or 8 || their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. 9 IT IS SO ORDERED. 10 || Dated: July 8, 2022 € 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 oe