Ward v. Pascual

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH WARD, Case No.: 3:23-cv-1423-BAS-AHG CDCR #BN-7790, 12 ORDER DENYING MOTION TO Plaintiff, 13 AMEND AND EXTENDING TIME vs. TO EFFECT SERVICE OF SECOND 14 AMENDED COMPLAINT AND CORRECTIONAL OFFICERS 15 SUMMONS AS TO DEFENDANT PASCUAL, SOSA and MASSARO, PASCUAL 16 Defendants. 17 18 19 On July 31, 2023, Plaintiff Joseph Ward, a state prisoner proceeding pro se, filed a 20 civil rights Complaint pursuant to 42 U.S.C. § 1983 along with a motion to proceed in 21 forma pauperis (“IFP”) and a motion to appoint counsel. (ECF Nos. 1–3.) Plaintiff 22 claimed that while housed at the Richard J. Donovan Correctional Facility (“RJD”) in San 23 Diego, California, Defendants RJD Correctional Officers Pascual, Sosa and Massaro left 24 his cell door open to allow another inmate to attack him and then delayed medical care in 25 retaliation for Plaintiff filing an inmate complaint. (See Compl., ECF No. 1 at 3–7.) 26 On October 25, 2023, the Court granted Plaintiff leave to proceed IFP, denied his 27 motion to appoint counsel, and screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) 28 & 1915A(b). (ECF No. 4.) The Court determined that the allegations in the Complaint 1 were sufficient to survive screening with respect to a First Amendment retaliation claim 2 and an Eighth Amendment failure to protect claim against Defendant Pascual, and that 3 Plaintiff was entitled to have the U.S. Marshal effect service of the summons and 4 Complaint as to that Defendant. (Id. at 5–8.) The Court found the Complaint did not 5 survive screening with respect to the claims against Defendants Sosa and Massaro. (Id. at 6 6–9.) The Court provided Plaintiff a choice of proceeding with his Complaint against 7 Defendant Pascual only or filing an amended complaint in an attempt to cure the pleading 8 defects identified in that Order on or before December 8, 2023. (Id. at 10–11.) Following 9 an extension of time, Plaintiff filed a First Amended Complaint on November 17, 2023. 10 (ECF No. 8.) Before the Court screened that version of the complaint, Plaintiff filed a 11 Second Amended Complaint (“SAC”) on January 8, 2024, once again naming Pascual, 12 Sosa and Massaro as Defendants. (ECF No. 9.) 13 On March 25, 2024, the Court screened the SAC and once again found Plaintiff had 14 stated a claim only as to Defendant Pascual. (ECF No. 10.) Because it was clear at that 15 time that Plaintiff could not state a claim against Sosa and Massaro, rather than provide 16 Plaintiff with a futile effort to amend, the Court dismissed all claims against Sosa and 17 Massaro. The Court further dismissed Plaintiff’s denial of medical care and equal 18 protection claims against all Defendants and ordered the United States Marshal to serve a 19 copy of the Second Amended Complaint and summons upon Defendant Pascual as directed 20 by Plaintiff on the USM Form 285. (Id.) Because the Court tolls the time for service while 21 it conducts its initial screening, Rule 4(m)’s service clock commences in an IFP case once 22 a summons issues and the U.S. Marshal is directed to effect service pursuant to Fed. R. 23 Civ. P. 4(c)(3). Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1204 n.8 (9th 24 Cir. 2014). Thus, Plaintiff has 90 days from the Court’s March 25, 2024, service order to 25 timely effect service, on or before June 23, 2024. 26 On April 4, 2024, Plaintiff filed a notice of appeal of the Court’s March 25, 2024, 27 Order. (ECF No. 12.) On April 26, 2024, the Ninth Circuit Court of Appeals dismissed 28 the appeal for lack of jurisdiction as seeking to appeal a non-appealable order. (ECF No. 1 15.) Plaintiff filed a Third Amended Complaint (“TAC”) on May 10, 2024, which again 2 names Pascual, Sosa and Massaro as Defendants and again fails to state a claim against 3 them or a denial of medical care or equal protection claim against any Defendant for the 4 same reasons set forth in the Court’s two prior dismissal orders. (ECF No. 16.) 5 After a brief period in which a party may amend as of right, a party may amend its 6 pleadings only with the court’s permission, although the “court should freely give leave [to 7 amend] when justice so requires.” FED. R. CIV. P. 15(a). The court may deny a motion 8 to amend if the proposed amendment is futile for lack of merit. AmerisourceBergen Corp. 9 v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006); Ahlmeyer v. Nev. Sys. of Higher 10 Educ., 555 F.3d 1051, 1055 (9th Cir. 2009) (“[F]utility of amendment alone can justify the 11 denial of a motion [to amend].”) 12 Here, it is clear that Plaintiff’s TAC is a futile attempt to amend because it contains 13 the same deficiencies of pleading as all other versions of the complaint. As with the other 14 versions of the complaint, the TAC again alleges that Plaintiff’s cell door could not have 15 been opened but for the actions of Defendants Sosa and Massaro but once again fails to 16 allege they were aware of a specific threat to Plaintiff or aware of Pascual’s alleged 17 retaliatory motive. Plaintiff therefore has not plausibly alleged a failure to protect claim 18 against Sosa and Massaro. (See TAC, ECF No. 16 at 6-9, 12-15.) The TAC also once 19 again fails to allege medical care was delayed or denied as a result of any action or inaction 20 by any Defendant (id. at 9-12, 16-19), or that Plaintiff was denied equal protection (id. at 21 20-23), for the same reasons as the prior versions of the complaint. 22 Accordingly, the Court construes Plaintiff’s filing of the TAC as a motion to amend 23 and denies the motion to amend as futile. The Court sua sponte extends the time in which 24 to serve the SAC on Defendant Pascual because the 90-day period within which service 25 must be executed has nearly expired. The Court extends the time for service in this case 26 for and additional thirty (30) days, until July 23, 2024, pursuant to Rule 4(m). See Mann 27 v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (holding that district court may, 28 under the broad discretion granted by Fed. R. Civ. P. 4(m), extend time for service). 1 Good cause appearing, the Court DENIES Plaintiff's motion to amend to file the 2 || TAC and sua sponte EXTENDS the time for service of the SAC until July 23, 2024. 3 The Court DIRECTS the Clerk to issue a summons as to Plaintiff's Second 4 || Amended Complaint (ECF No. 9) for Defendant Pascual and forward it to Plaintiff along 5 || with a blank U.S. Marshal Form 285. The Clerk will provide Plaintiff with certified copies 6 ||of the Second Amended Complaint and summons for use in serving Defendant. Upon 7 ||receipt of this “In Forma Pauperis Package,” Plaintiff must complete the USM Form 285 8 ||as completely and accurately as possible, include an address where Defendant may be 9 || found and/or subject to service pursuant to S.D. Cal. CivLR 4.1(c), and return the forms to 10 United States Marshal according to the instructions the Clerk provides in the letter 11 accompanying the In Forma Pauperis Package. 12 The Court ORDERS the U.S. Marshal to serve a copy of the Second Amended 13 |}Complaint and summons upon Defendant Pascual as directed by Plaintiff on the USM 14 ||Form 285. Costs of service will be advanced by the United States. See 28 U.S.C. 15 || § 1915(d); Fed. R. Civ. P. 4(c)(3). 16 || IT IS SO ORDERED. 17 ) 18 || DATED: June 10, 2024 ( yi 4 (Hiphanr 6 19 United States District Judge 20 21 22 23 24 25 26 27 28 4 □□