1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEPHEN MARK PICART, Case No.: 25-cv-1846-AJB-AHG CDCR #G-67811, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS
15 MARCUS POLLARD, Warden; (2) DISMISSING DEFENDANT 16 ALEJANDRO R. GONZALEZ, Program POLLARD PURSUANT TO Sergeant; SHADE WILLIAMS, Program 17 28 U.S.C. §§ 1915(e)(2) Sergeant; RASHAD RAINEY, AND 1915A(b)(1) 18 Correctional Officer,
19 Defendants. AND
20 (3) DIRECTING U.S. MARSHAL 21 TO EFFECT SERVICE UPON REMAINING DEFENDANTS 22 PURSUANT TO 28 U.S.C. § 1915(d) 23 AND Fed. R. Civ. P. 4(c)(3)
24 (Doc. No. 2) 25 26 Plaintiff Stephen Mark Picart, proceeding pro se and currently incarcerated at 27 Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, has filed a 28 civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1), together with 1 a Motion to Proceed In Forma Pauperis (“IFP”) (Doc. No. 2). Picart claims RJD prison 2 officials used excessive force against him on July 25, 2023. (See Compl. at 3‒5.) 3 For the reasons explained, the Court GRANTS Picart leave to proceed IFP, screens 4 his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and DISMISSES 5 Warden Pollard as a party because Picart fails to state a plausible claim for relief against 6 him. Because Picart alleges plausible Eighth Amendment excessive force claims against 7 Defendants Gonzalez, Williams, and Rainey, however, the Court DIRECTS the United 8 States Marshal to effect service of process upon them pursuant to 28 U.S.C. § 1915(d) and 9 Federal Rule of Civil Procedure 4(c)(3). 10 I. IFP MOTION 11 All parties instituting any civil action, suit, or proceeding in a district court of the 12 United States, except an application for writ of habeas corpus, must pay a filing fee.1 See 13 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire fee at the 14 time of filing only if the court grants the plaintiff leave to proceed IFP pursuant to 28 U.S.C. 15 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf. Hymas v. 16 U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP application 17 is denied altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] [a]re 18 paid.”). 19 “While the previous version of the IFP statute granted courts the authority to waive 20 fees for any person ‘unable to pay[,]’ . . . the PLRA [Prison Litigation Reform Act] 21 amended the IFP statute to include a carve-out for prisoners: under the current version of 22 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the 23 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767 24 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 1 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)). 2 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 3 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 4 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 5 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 6 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and when 7 funds exist, collect, . . . an initial partial filing fee,” which is “calculated based on ‘the 8 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 9 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 10 payments of 20 percent of the preceding month’s income credited to the prisoner’s 11 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). Thus, while 12 prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one 13 lump sum, they nevertheless remain obligated to pay the full amount due in monthly 14 payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); 15 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 16 Here, Picart’s IFP motion complies with both 28 U.S.C. § 1915(a)(1) and (2). In 17 support, he has submitted a copy of his California Department of Corrections and 18 Rehabilitation (“CDCR”) Inmate Trust Account Statement Report (Doc. No. 3). See also 19 S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. Picart’s trust account statements show he 20 maintained an average monthly balance of $72.25 in his prison trust account and had $15 21 in average monthly deposits credited over the 6-month period immediately preceding the 22 filing of his Complaint. At the time of filing, however, Picart’s available balance was only 23 $1.36. (See Doc. No. 3 at 2, 3.) 24 Accordingly, the Court GRANTS Picart’s Motion to Proceed IFP (Doc. No. 2) and 25 assesses an initial partial filing fee of $14.45 pursuant to 28 U.S.C. § 1915(b)(1). But this 26 initial fee need be collected only if sufficient funds are available in Picart’s account at the 27 time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall 28 a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 1 judgment for the reason that the prisoner has no assets and no means by which to pay the 2 initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts 3 as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure 4 to pay . . . due to the lack of funds available to him when payment is ordered.”). The CDCR 5 must thereafter collect the full balance of the $350 total fee owed in this case and forward 6 payments to the Clerk of the Court as provided by 28 U.S.C. § 1915(b)(2). 7 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 8 A. Standard of Review 9 Because Picart is a prisoner and proceeding IFP, his Complaint requires screening 10 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must 11 sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 12 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 13 Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) 14 (citing Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc)); Rhodes v. 15 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 16 “The standard for dismissal for prisoner claims at screening is the ‘same as the 17 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.’” Long v. 18 Sugai, 91 F.4th 1331, 1336 (9th Cir. 2024) (quoting Watison v. Carter, 668 F.3d 1108, 19 1112 (9th Cir. 2012)); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) 20 (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in 21 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 22 Federal Rules of Civil Procedure 8(a) and 12(b)(6) together require a complaint to “contain 23 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 24 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); 25 Wilhelm, 680 F.3d at 1121.2 26
27 2 In determining whether a plaintiff has stated a plausible claim for relief, the Court may also consider 28 1 Finally, while the court “ha[s] an obligation where the petitioner is pro se, 2 particularly in a civil rights case, to construe the pleadings liberally and to afford the 3 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 4 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 5 essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. 6 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 7 B. Factual Allegations 8 While he was attending a computer class at RJD on July 25, 2023, Picart claims he 9 was summoned to report to the Facility E Program Office. (See Compl. at 3 & Ex. A, Doc. 10 No. 1-2 at 3.) There, Sergeant Gonzalez informed Picart he was being transferred to RJD’s 11 D Yard, but Picart refused, claiming the transfer would have a “detrimental impact on his 12 rehabilitative goals.” (Compl. at 4; Doc. No. 1-2 at 3.)3 Gonzalez then ordered Picart to put 13 his hands behind his back, Picart complied, and Gonzalez escorted him to a holding tank. 14 (Doc. No. 1-2 at 3, 13.) After waiting several hours in the tank, Picart became lightheaded 15 because he had not eaten lunch. (Compl. at 4.) Picart claims Gonzalez then “used his tactic 16 to persuade [Picart] to go to his office for confidentiality.” (Id.)4 17 After arriving in the Sergeant’s Office, Picart alleges Gonzalez placed him in hand 18 restraints. Picart then told Gonzalez he was lightheaded, and while still in hand restraints, 19 20
21 22 written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citing Amfac Mortg. 23 Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be considered” in ruling on a Rule 12(b)(6) motion to dismiss.)). 24 3 While Picart does not explain the proffered justification for the D Yard transfer in his Complaint, CDCR 25 Rules Violation Report (RVR) Log No. 7330010, attached as an exhibit, indicates Picart’s move was 26 prompted by a need to “accommodate a vision impaired inmate.” (See Ex. B, Doc. No. 1-2 at 13‒14.)
27 4 Picart does not provide any further explanation of the need for confidentiality, but RVR Log No. 7330010 refers to Picart’s “previously alleged safety concerns” and the potential for an Administrative Segregation 28 1 alleges he reached for his walker so he could sit down. (Id.) At this point, Picart alleges 2 Gonzalez “said something and suddenly both Sergeants (A.R. Gonzalez and S. Williams) 3 and C/O Rainey grabbed and slammed [him] to the floor.” (Id. at 4.) Picart claims he was 4 still cuffed at the time, “extremely dizzy,” “seeing stars,” and was “gasping for air due to 5 [a] chemical agent (pepper spray) being activate[d] in a very close proximity.” (Id.) Picart 6 further alleges Gonzalez, Williams, and Rainey “would not let [him] get up from the pool 7 of the chemical agent,” and refused to permit him to “rise up and catch his breath” for 8 approximately 2‒3 minutes while they applied leg restraints for reasons he “do[es not] 9 know,” and before escorting him to be evaluated by a nurse. (Id. at 5; Doc. No. 1-2 at 4.) 10 Picart seeks injunctive relief preventing “reprisal and retribution” against him while 11 the case is litigated, general damages in an amount the “court deem[s] appropriate,” and $1 12 million in punitive damages based on claims that Defendants used “improper and 13 unlawful” force in violation of the Eighth Amendment’s prohibition of “cruel and unusual 14 punishment.” (Compl. at 3, 10.) 15 C. 42 U.S.C. § 1983 16 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 17 elements: (1) that a right secured by the Constitution or laws of the United States was 18 violated, and (2) that the alleged violation was committed by a person acting under the 19 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 20 1035‒36 (9th Cir. 2015). Here, all Defendants are alleged to be RJD correctional officials 21 acting in their official capacity as employees of the CDCR at the time Picart’s claims 22 23 24 25 5 Picart also does not explicitly allege he suffers from any mental health issues nor does he identify the 26 nature of his physical disabilities requiring use of a walker, but he includes citation to the CDCR’s Operations Manual provisions regulating “controlled use of force” situations and references portions 27 requiring custody staff to employ de-escalation tactics and a “cooling off” period for inmates with “disabilities and/or mental health issues such that the use of chemical agent[s] or physical force would 28 1 accrued. See Naffe, 789 F.3d at 1036 (explaining that a state employee generally acts under 2 color of state law when the employee “wrongs someone while acting in his official capacity 3 or while exercising his responsibilities pursuant to state law.”) (citation and internal 4 quotation marks omitted). Therefore, the Court next considers whether Picart has alleged 5 facts sufficient to plausibly show a violation of his Eighth Amendment rights. 6 D. Individual Liability – Warden Marcus Pollard 7 With respect to Warden Pollard, Picart fails to state any plausible Eighth 8 Amendment claim for relief because he fails to include “further factual enhancement” 9 which describes how or whether Pollard was personally involved in the July 25, 2023, 10 incident. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). 11 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. 12 Sanderson, 9 F.3d 1433, 1437‒38 (9th Cir. 1993). “Because vicarious liability is 13 inapplicable to . . . § 1983 suits, [Picart] must plead that each government-official 14 defendant, through the official’s own individual actions, has violated the Constitution.” 15 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los 16 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even a pro se plaintiff must “allege with at 17 least some degree of particularity overt acts which defendants engaged in” in order to state 18 a claim). “A plaintiff must allege facts, not simply conclusions, t[o] show that [each 19 defendant] was personally involved in the deprivation of his civil rights.” Barren v. 20 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks 21 22 6 While Picart does not specify in his form Complaint that he seeks to sue any Defendant in his personal 23 capacity (see Compl. at 2) where a plaintiff seeks damages against a state official, a personal capacity is presumed because an official-capacity suit for damages would be barred. See Mitchell v. Washington, 818 24 F.3d 436, 442 (9th Cir. 2016); Shoshone-Bannock Tribes v. Fish & Game Comm’n, Idaho, 42 F.3d 1278, 1284 (9th Cir. 1994) (“Where state officials are named in a complaint which seeks damages under 42 25 U.S.C. § 1983, it is presumed that the officials are being sued in their individual capacities.”); see also 26 Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Personal capacity suits seek to impose personal liability upon a government official for actions [the official] takes under color of state law.”). To the extent Picart 27 seeks damages against any of the named Defendants in their official capacities, however, those claims are dismissed as barred by the Eleventh Amendment. See Mitchell, 818 F.3d at 442 (“The Eleventh 28 1 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required 2 element of a § 1983 claim.”). 3 Picart’s Complaint offers no factual detail from which the Court might reasonably 4 infer a plausible Eighth Amendment violation on the part of Warden Pollard. Instead, Picart 5 simply includes Pollard in the caption, and identifies him as “the top management” 6 responsible for “supervis[ing] the correctional officer[s] at [RJD].” (See Compl. at 2.) 7 Supervisory officials like Pollard may be held liable under § 1983 only if Picart alleges his 8 “personal involvement in the constitutional deprivation, or . . . a sufficient causal 9 connection between the supervisor’s wrongful conduct and the constitutional violation.” 10 Keates v. Koile, 883 F.3d 1228, 1242‒43 (9th Cir. 2018); see also Starr v. Baca, 652 F.3d 11 1202, 1207 (9th Cir. 2011). Other than identifying Pollard as a supervisor, Picart includes 12 no further factual allegations describing the Warden’s involvement in the July 25, 2023, 13 excessive force incident involving Defendants Gonzalez, Williams, and Rainey. Nor is 14 there any reference to Warden Pollard in the exhibits Picart attached to his Complaint. 15 Therefore, the Court DISMISSES Warden Marcus Pollard sua sponte based on Picart’s 16 failure to state a plausible Eighth Amendment claim against him. See 28 U.S.C. 17 § 1915(e)(2)(B)(ii) and § 1915A(b)(1); Lopez, 203 F.3d at 1126‒27; Rhodes, 621 F.3d at 18 1004. 19 E. Eighth Amendment Excessive Force Claims 20 With respect to the Eighth Amendment excessive force claims alleged against 21 Sergeants Gonzalez and Williams and Correctional Officer Rainey, however, the Court 22 finds Picart’s allegations sufficient to sufficient to survive the “low threshold” set for sua 23 sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 24 F.3d at 1123; Iqbal, 556 U.S. at 678. 25 Unnecessary and wanton infliction of pain violates the Cruel and Unusual 26 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). 27 For claims involving the alleged use of excessive physical force, the Court considers 28 “whether force was applied in a good-faith effort to maintain or restore discipline, or 1 maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per 2 curiam) (citing Hudson, 503 U.S. at 7) (internal quotation marks omitted). Here, Picart 3 alleges Gonzalez, Williams, and Rainey all “grabbed” him suddenly in the Program 4 Sergeant’s Office while he was already cuffed and “slammed” him to floor after Picart had 5 already informed Gonzalez he was lightheaded. (See Compl. at 4.) Nothing in Picart’s 6 Complaint suggests a need to slam Picart to the ground, or the need to dispense pepper 7 spray in an enclosed space against a cuffed, dizzy, and physically disabled prisoner either 8 in order to maintain discipline or to ensure Picart’s compliance with any order. See Hudson, 9 507 U.S. at 7; cf. Whitley v. Albers, 475 U.S. 312, 320–21 (1986) (noting that “[w]here a 10 prison security measure is undertaken to resolve a disturbance . . . that indisputably poses 11 significant risks to the safety of inmates and prison staff, . . . the question whether the 12 measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on 13 ‘whether force was applied in a good faith effort to maintain or restore discipline or 14 maliciously and sadistically for the very purpose of causing harm.’”) (citation omitted). 15 Instead, Picart’s allegations are sufficient to plausibly suggest that Gonzalez, Williams, and 16 Rainey’s actions during the July 25, 2023 Program Office incident were excessive under 17 the circumstances. See Iqbal, 556 U.S. at 678; see also Kendall v. Galindo, No. 23-CV- 18 02709-HSG, 2023 WL 4372700, at *2 (N.D. Cal. July 6, 2023) (finding allegations that 19 correctional officers “yanked” the arms and shoulders of a non-resistant prisoner already 20 cuffed from behind, “dragged” him across the floor, and then repeatedly “slammed him 21 face-first into the floor” after he requested to speak to a supervisor sufficient to state a 22 cognizable Eighth Amendment claim of excessive force); Mendiola v. King, No. 2:23-CV- 23 01512 DB P, 2024 WL 363622, at *2 (E.D. Cal. Jan. 31, 2024) (finding allegations of 24 excessive force involving use of pepper spray against prisoner who alleged to have been 25 battered and was attempting to comply with orders sufficient to survive initial screening 26 under 28 U.S.C. § 1915A); see also Hughes v. Rodriguez, 31 F.4th 1211, 1222 (9th Cir. 27 2022) (affirming denial of summary judgment where genuine dispute existed as to whether 28 1 prisoner was “beaten and bitten after he was handcuffed in violation of the Eighth 2 Amendment”) (emphasis added). 3 Thus, because the Court finds Picart’s excessive force allegations against 4 Defendants Gonzalez, Williams, and Rainey are “sufficient to warrant . . . an answer,” 5 Wilhelm, 680 F.3d at 1123, it will direct U.S. Marshal service on his behalf. See 28 U.S.C. 6 § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties 7 in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by 8 a United States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in 9 forma pauperis under 28 U.S.C. § 1915.”). 10 III. CONCLUSION 11 For the reasons discussed, the Court: 12 1. GRANTS Picart’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 13 (Doc. No. 2.) 14 2. ORDERS the Secretary of the CDCR, or his designee, to collect from Picart’s 15 trust account the $14.45 initial filing fee assessed, if those funds are available at the time 16 this Order is executed, and forward whatever balance remains of the full $350 owed in 17 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s 18 income to the Clerk of the Court each time the amount in his account exceeds $10 pursuant 19 to 28 U.S.C. § 1915(b)(2). 20 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 21 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via 22 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 23 4. DISMISSES Defendant Marcus Pollard without prejudice based on Picart’s 24 failure to state a claim against him pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1) 25 and DIRECTS the Clerk of Court to terminate Pollard as a party to this action. 26 5. DIRECTS the Clerk to issue a summons as to Picart’s Complaint (Doc. 27 No. 1) and forward it to him along with blank U.S. Marshal Form 285s for Defendants 28 Alejandro R. Gonzalez, Shade Williams, and Rashad Rainey. In addition, the Clerk will 1 provide Picart with a certified copy of this Order, certified copies of his Complaint, and 2 the summons so that he may serve these Defendants. Upon receipt of this “IFP Package,” 3 Picart must complete the Form 285s as completely and accurately as possible, include a 4 physical address where Defendants Gonzalez, Williams, and Rainey may be found and/or 5 subject to service, and return all these documents to the United States Marshal at the 6 address provided by the Clerk and according to the instructions provided in the letter 7 accompanying his IFP package. 8 6. ORDERS the U.S. Marshal, upon receipt of these documents from Picart, to 9 serve a copy of the Complaint and summons upon Defendants Gonzalez, Williams, and 10 Rainey at the addresses provided by Picart on the U.S. Marshal Form 285s, and to file 11 executed waivers of personal service upon these Defendants with the Clerk of Court as 12 soon as possible after their return. Should Defendants fail to return the U.S. Marshal’s 13 requests for waiver of personal service within 90 days, the U.S. Marshal must instead 14 timely file the completed Form U.S. Marshal 285 Process Receipt and Returns with the 15 Clerk of Court, include the date the summons, Complaint, and requests for waiver were 16 mailed to each Defendant, and indicate why service was not completed. All costs of service 17 will be advanced by the United States; however, if any Defendant located within the United 18 States fails without good cause to sign and return the waivers requested by the Marshal on 19 Picart’s behalf, the Court will impose upon that Defendant any expenses later incurred in 20 making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 21 7. ORDERS Defendants Gonzalez, Williams, and Rainey, once served, to reply 22 to Picart’s Complaint, and any subsequent pleading Picart may file in this matter in which 23 they are named as parties, within the time provided by the applicable provisions of Federal 24 Rule of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while defendants 25 may occasionally be permitted to “waive the right to reply to any action brought by a 26 prisoner confined in any jail, prison, or other correctional facility under section 1983,” once 27 the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and 28 § 1915A(b), and thus, has made a preliminary determination based on the face of the 1 || pleading alone that the plaintiff has a “reasonable opportunity to prevail on the merits,” 2 defendants are required to respond). 3 8. ORDERS Picart, after service has been completed by the U.S. Marshal, to 4 || serve upon Defendants Gonzalez, Williams, and Rainey, or if appearance has been entered 5 counsel, upon Defendants’ counsel, a copy of every further pleading, motion, or other 6 |}document submitted for the Court’s consideration pursuant to Federal Rule of Civil 7 || Procedure 5(b). Picart must include with every original document he seeks to file with the 8 || Clerk of the Court, a certificate stating the manner in which a true and correct copy of that 9 || document was served on Defendants or their counsel, and the date of that service. See S.D. 10 CivLR 5.2. Any document received by the Court which has not been properly filed 11 || with the Clerk, or which fails to include a Certificate of Service upon these Defendants, or 12 || their counsel, may be disregarded. 13 IT IS SO ORDERED. 14 || Dated: October 14, 2025
16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 12