Welch v. Maxson

Opinion

1 JL 2 WO 3 4 5 8 9 Ryan William Welch, No. CV 20-08107-PCT-DGC (MHB) 10 Plaintiff, 11 v. ORDER 12 Unknown Maxson, et al., 13 14 Defendants.

15 16 On May 7, 2020, Plaintiff Ryan William Welch, who is confined in the Yavapai 17 County Detention Center, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 18 and a Motion for Immediate Relief. In a May 22, 2020 Order, the Court denied the Motion 19 for Immediate Relief and gave Plaintiff 30 days to pay the filing and administrative fees or 20 file an Application to Proceed In Forma Pauperis. 21 On June 8, 2020, Plaintiff filed an Application to Proceed In Forma Pauperis. In a 22 June 15, 2020 Order, the Court granted the Application and dismissed the Complaint 23 because Plaintiff failed to state a claim. The Court gave Plaintiff 30 days to file an amended 24 complaint that cured the deficiencies identified in the Order. 25 On June 15, 2020, Plaintiff filed a Motion to Appoint Counsel (Doc. 9). On June 29, 26 2020, Plaintiff filed a First Amended Complaint (Doc. 10). The Court will order 27 Defendants Maxson, Morga, Lara, Snyder, and Cote to answer the excessive force claim 28 in Count One of the First Amended Complaint; order Defendants McKinney, Byers, and 1 Sampson to answer the due process claims in Count Three; order Defendant Sampson to 2 answer the conditions-of-confinement claim in Count Three; and dismiss Count Two and 3 Defendants Napper and Bailey without prejudice. The Court will deny the motion to 4 appoint counsel. 5 I. Statutory Screening of Prisoner Complaints 6 The Court is required to screen complaints brought by prisoners seeking relief 7 against a governmental entity or an officer or an employee of a governmental entity. 28 8 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 9 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 10 relief may be granted, or that seek monetary relief from a defendant who is immune from 11 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 12 A pleading must contain a “short and plain statement of the claim showing that the 13 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 14 not demand detailed factual allegations, “it demands more than an unadorned, the- 15 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Id. 18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 19 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 20 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 23 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 25 allegations may be consistent with a constitutional claim, a court must assess whether there 26 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 27 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 28 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 1 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 2 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 3 U.S. 89, 94 (2007) (per curiam)). 4 II. First Amended Complaint 5 In his First Amended Complaint, Plaintiff sues Judge John Napper, Sergeants 6 Maxson and Sampson, and Detention Officers Morga, Lara, Snyder, Cote, McKinney, 7 Byers, and Bailey. Plaintiff asserts claims of excessive force, unlawful detention, and 8 denial of due process in disciplinary proceedings. He seeks monetary and injunctive relief. 9 In Count One, Plaintiff alleges that at 11:00 p.m. on April 28, 2020, Defendants 10 Maxson and Morga were “in the bubble” for security and left the dorm lights on, although 11 jail rules specifically state that detainees are entitled to six hours of uninterrupted sleep 12 from 10:00 p.m. to 4:00 a.m. Plaintiff asserts that he told “them” to turn off the lights, but 13 they refused. Plaintiff yelled, “turn the fuxxing [sic] lights off,” but “they” thought it was 14 funny to “mess with” Plaintiff on the speaker and not turn off the lights. Plaintiff and his 15 cellmate were “calling them retards.” Defendants Maxson and Morga then sent officers to 16 Plaintiff’s cell to extract him, although Plaintiff was already locked down in his cell in 17 solitary confinement 23 and a half hours per day. Plaintiff claims there was no reason for 18 the officers to enter his cell “just because they [did not his] language.” Plaintiff alleges he 19 was not being violent; he “just wanted the lights off and said some cuss words.” Plaintiff 20 asserts there was no headcount being conducted and he did not break any rules. He claims 21 “they” simply wanted to hurt him to teach him a lesson. 22 Plaintiff alleges that Defendants Snyder, Cote, and Lara were also “involved,” and 23 there are more officers whom Plaintiff cannot name. Plaintiff asserts that “they” came to 24 his cell and told him to cuff up by putting his hands through the “bean shoot” in the cell 25 door. Plaintiff asked them, “for what?” Plaintiff was told that if he did not comply, they 26 would force him. Plaintiff put his hands through the bean shoot, and “they” placed 27 handcuffs on him so tightly that the cuffs cut his wrists. “They” twisted Plaintiff’s wrists 28 behind his back, and he yelled out in pain. “They” opened the cell door and slammed 1 Plaintiff into the metal doorjamb, fracturing his left collarbone. Plaintiff said, “ow[]! really 2 loud,” and “they” again slammed him into the wall and twisted his wrists behind him. 3 Plaintiff and the officers walked to the stairs, and the officers, who were all behind Plaintiff, 4 tried to trip him. Plaintiff “lifted [his] legs” and when he was almost to the bottom of the 5 stairs, he was tripped from behind and twisted his ankle. Someone landed on top of 6 Plaintiff, and Plaintiff felt his wrist “pop.” He yelled out in pain again, and “they” lifted 7 him. Plaintiff’s knuckles on his right hand were bleeding, and he “kept saying” he was 8 bleeding and, “that hurts.” “They” twisted Plaintiff’s arms behind him and moved him to 9 the other side of the jail “for no reason.” 10 “They” then moved Plaintiff into the quarantine cells, which are used for detainees 11 to be screened for COVID-19 when they enter the jail, thereby putting Plaintiff at risk of 12 contracting the virus. They threw Plaintiff on the floor in the cell and “all were on top of 13 [him].” Plaintiff said, “Get off!” and they told him to stop resisting. Plaintiff alleges that 14 Defendant Maxson “stood there and smiled” as the officers, who were all taller and heavier 15 than Plaintiff, were “roughing [Plaintiff] up.” Plaintiff contends the other officers are “just 16 as guilty for going along with it.” Defendant Maxson sanctioned Plaintiff to seven days 17 on lockdown and seven days loss of privileges, although Plaintiff was already locked down. 18 A nurse put a bandage on the knuckles of Plaintiff’s right hand. The knuckles were “out 19 of place,” swollen, and numb. Plaintiff refused to have his other injuries examined, and he 20 has scars. 21 Plaintiff alleges he submitted a grievance immediately after this incident while he 22 was appealing his unlawful detention in administrative segregation because the charges 23 “are false and fabricated.” Plaintiff asserts non-party Captain Newman denied all his 24 appeals at the highest level and that it took a month for the appeal to be addressed. 25 Plaintiff alleges that he suffered a fractured left clavicle, bruises on his arms, 26 shoulders, and wrists, cuts on his wrists from tight handcuffs, swollen wrists, cuts on his 27 knuckles, a twisted ankle, and psychological damage. 28 1 In Count Two, Plaintiff alleges that Defendant Napper imposed an excessive 2 $25,000 cash bond in Plaintiff’s criminal proceeding, in violation of Article II, section 15 3 of the United States and Arizona Constitutions and the Eighth Amendment. Plaintiff 4 contends that judicial immunity does not bar prospective injunctive relief against a judge 5 who imposes bail on individuals who are charged with “non-jailable” offenses. Plaintiff 6 claims he is charged for offenses that are not violent, repetitive, drug-related, sexual, or 7 dangerous. Plaintiff is not a convicted felon; he has no prior convictions at all. Plaintiff 8 asserts he is not a flight risk because he lives, works, and attends college in Yavapai 9 County, and he has lived in Arizona his entire life. Plaintiff contends there is “no reason 10 in good faith” to hold him in jail for 15 months on an excessive bail. Plaintiff alleges that 11 he has lost his life, liberty, and freedom, and “[his] conscience has been shocked” by his 12 unnecessary pretrial incarceration and unlawful detention. 13 In Count Three, Plaintiff alleges that on November 4, 2019, Defendant Morga 14 claimed Plaintiff had ripped his socks. There was already a hole in the sock; Plaintiff “just 15 made it bigger” because he “simply wanted decent socks” to wear to court. Plaintiff was 16 told to pack his belongings to be moved. Plaintiff asked, “to where?” “They” just “kept 17 repeating it.” Plaintiff was not given a reason for being moved. Instead, Defendants Bailey 18 and Morga handcuffed Plaintiff and threw him into a wall. Plaintiff hit his head when they 19 handcuffed him and hit his head again on the door as they were leaving. Plaintiff was told 20 he would be sanctioned to 14 days on lockdown. Plaintiff claims he was not provided a 21 fair hearing and was not permitted to exercise his right to remain silent. Plaintiff was 22 moved into lockdown, and the next day, on November 5, 2019, Defendant Byers told 23 Plaintiff he was “making [Plaintiff] permanent ADSEG.” Defendant Byers moved Plaintiff 24 to solitary confinement, where Plaintiff remained until April 28, 2020, when Defendant 25 Maxson removed him. 26 Plaintiff alleges that on January 12, 2020, his recreation time “was being cut short” 27 although he still had five of 30 minutes left of his permitted recreation time. Plaintiff took 28 a shower, and Defendant McKinney told Plaintiff that his time was up. Plaintiff told 1 McKinney that he had kept track of time, took a shower in three minutes, then hurried to 2 get back to his cell. Plaintiff was locked out of his cell and was accused of refusing to lock 3 down. Plaintiff claims these allegations were false and he was not given a fair hearing or 4 permitted to exercise his right to remain silent. Plaintiff alleges that Defendant Sampson 5 “made” Defendant McKinney write Plaintiff up. Defendant Sampson sanctioned Plaintiff 6 to 30 days of 72-hour lockdown with one hour out. Plaintiff appealed this decision, but at 7 the highest level – Captain Newman – denied the appeal. 8 Plaintiff attaches to his First Amended Complaint copies of documents relating to 9 his disciplinary proceedings. On November 4, 2019, Plaintiff was charged with failure to 10 follow staff’s orders, insolence toward staff, mutilating or altering county-issued clothing 11 or property, and “conduct which disrupts.” The supporting facts state that during clothing 12 exchange, Plaintiff mutilated clothing by tearing apart socks in Defendant Morgan’s 13 presence. After being instructed to gather his belongings, Plaintiff refused to comply. The 14 dorm was locked down, and Plaintiff continued to verbally refuse orders from staff. 15 Plaintiff was placed in restraints and removed from the dorm. 16 On January 12, 2020, Plaintiff was charged with refusing to obey a staff member’s 17 orders and failure to follow staff orders. The supporting facts stated that Plaintiff had 18 “repeatedly locked down late and refuse[d] to listen to staff orders.” The facts stated that 19 Defendant McKinney asked Plaintiff to lock down, and Plaintiff refused and started to take 20 a shower. Several minutes passed as McKinney repeatedly instructed Plaintiff to lock 21 down, and Plaintiff “continually refused.” 22 On April 28, 2020, Plaintiff was charged with insolence toward staff and failure to 23 follow staff members’ orders. The supporting facts state that while conducting headcounts, 24 Plaintiff “engag[ed] in disruptive behavior,” used profanity toward staff, and used 25 derogatory comments in regard to the rules of the facility. 26 Plaintiff also alleges in Count Three that between November 4, 2019 and April 28, 27 2020, Defendant Sampson did not allow Plaintiff to go outside. Plaintiff asked on the 10th 28 and 25th of each month if he could have recreation time in the yard, but he was never 1 allowed. Plaintiff also requested recreation time on June 24, 2020, which was denied. 2 Plaintiff asserts that he was last allowed outside in August 2019, when he was in general 3 population, but since then he has not been permitted outside recreation time. 4 III. Failure to State a Claim 5 A. Defendant Napper 6 Judges are absolutely immune from § 1983 suits for damages for their judicial acts, 7 except when they are taken “in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 8 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)); 9 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). An act is “judicial” when it is a 10 function normally performed by a judge and the parties dealt with the judge in his or her 11 judicial capacity. Stump, 435 U.S. at 362; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 12 1990). This immunity attaches even if the judge is accused of acting maliciously and 13 corruptly, Pierson v. Ray, 386 U.S. 547, 554 (1967), or of making grave errors of law or 14 procedure, see Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). 15 Plaintiff’s allegations against Defendant Napper pertain only to Napper’s 16 imposition of a cash bond in Plaintiff’s criminal proceeding. Despite Plaintiff’s assertions 17 to the contrary, Defendant Napper is absolutely immune for such acts. 18 Furthermore, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 19 (1971), prevents a federal court in most circumstances from directly interfering with 20 ongoing criminal proceedings in state court and applies while the case works its way 21 through the state appellate process. New Orleans Pub. Serv., Inc. v. Council of City of New 22 Orleans, 491 U.S. 350, 369 (1989) (“[f]or Younger purposes, the State’s trial-and-appeals 23 process is treated as a unitary system”); Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) 24 (“Virtually all of the evils at which Younger is directed would inhere in federal intervention 25 prior to completion of state appellate proceedings, just as surely as they would if such 26 intervention occurred at or before trial.”). “[O]nly in the most unusual circumstances is a 27 defendant entitled to have federal interposition by way of injunction or habeas corpus until 28 after the jury comes in, judgment has been appealed from and the case concluded in the 1 state courts.” Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (per curiam). Special 2 circumstances occur “[o]nly in cases of proven harassment or prosecutions undertaken by 3 state officials in bad faith without hope of obtaining a valid conviction and perhaps in other 4 extraordinary circumstances where irreparable injury can be shown.” Carden v. Montana, 5 626 F.2d 82, 84 (9th Cir. 1980) (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)). 6 Plaintiff has failed to show special or extraordinary circumstances to support that 7 he will suffer irreparable harm if this Court abstains from hearing his claims until after he 8 has a chance to present them to the state courts. See Younger, 401 U.S. at 45-46; Carden, 9 626 F.2d at 83-84. Thus, the Court will abstain from interfering in Plaintiff’s ongoing 10 state-court criminal proceedings with respect to bail. These issues should be raised in his 11 criminal case, not here. See, e.g., Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) (per 12 curiam) (abstention appropriate in § 1983 action for denial of Sixth Amendment right to 13 counsel; plaintiff can adequately litigate his claim in ongoing state criminal proceedings 14 and the potential for federal-state friction is obvious). The Court will dismiss Defendant 15 Napper and Count Two. 16 B. Defendant Bailey 17 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 18 (2) under color of state law (3) deprived him of federal rights, privileges or immunities and 19 (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 20 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 21 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury 22 as a result of the conduct of a particular defendant and he must allege an affirmative link 23 between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371- 24 72, 377 (1976). 25 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 27 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 28 1 civil rights complaint may not supply essential elements of the claim that were not initially 2 pled. Id. 3 Plaintiff’s only specific allegation against Defendant Bailey is that on November 4, 4 2019, Bailey, along with Defendant Morga, handcuffed Plaintiff and threw him into a wall 5 after Plaintiff asked where he was being moved. This bare allegation is insufficient to 6 support a conclusion that Bailey’s conduct resulted in any injury to Plaintiff. The Court 7 will therefore dismiss Defendant Bailey. 8 IV. Claims for Which an Answer Will be Required 9 In Count One, Plaintiff alleges that Defendants Maxson and Morga ordered officers 10 to physically extract Plaintiff from his cell because he used profanity and questioned their 11 failure to turn off the lights, and that Defendants Snyder, Cote, and Lara forcibly 12 handcuffed Plaintiff, twisted his wrists, slammed him into a metal doorjamb and a wall, 13 tripped him while he was walking down a flight of stairs, and tackled him in a quarantine 14 cell. Liberally construed, Plaintiff has stated a Fourteenth Amendment excessive force 15 claim against Defendants Maxson, Morga, Snyder, Cote, and Lara in their individual 16 capacities. The Court will require these Defendants to answer Count One. 17 In Count Three, Plaintiff alleges that on three occasions, he was found guilty of 18 disciplinary violations and sanctioned without a hearing or an opportunity to present 19 evidence or question witnesses. Liberally construed, Plaintiff has stated a Fourteenth 20 Amendment due process claim against Defendants Byers, McKinney, and Sampson in their 21 individual capacities. The Court will require these Defendants to answer the due process 22 claims in Count Three. 23 Plaintiff also alleges in Count Three that he requested recreation time on the 10th 24 and 25th of every month between November 2019 and April 2020, and each time, 25 Defendant Sampson denied his request. Liberally construed, Plaintiff has stated a 26 Fourteenth Amendment conditions-of-confinement claim against Defendant Sampson in 27 his individual capacity. The Court will require this Defendant to answer the conditions-of- 28 confinement claim in Count Three. 1 V. Motion to Appoint Counsel 2 In his Motion to Appoint Counsel, Plaintiff asks the Court to appoint counsel to 3 represent him in this case because he has suffered bodily harm by his jailers, has been 4 denied due process of law, has been made financially indigent, and is in unnecessary 5 pretrial incarceration. Plaintiff asserts this case is complex and will require subpoenas and 6 extensive research. 7 There is no constitutional right to the appointment of counsel in a civil case. See 8 Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, 9 the court may request an attorney to represent any person unable to afford one. 28 U.S.C. 10 § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when 11 “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 12 1991). A determination with respect to exceptional circumstances requires an evaluation 13 of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 14 claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these 15 factors is dispositive and both must be viewed together before reaching a decision.” Id. 16 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 17 Having considered both elements, it does not appear at this time that exceptional 18 circumstances are present that would require the appointment of counsel in this case. 19 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will 20 deny without prejudice Plaintiff’s Motion to Appoint Counsel. 21 VI. Warnings 22 A. Release 23 If Plaintiff is released while this case remains pending, and the filing fee has not 24 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 25 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 26 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 27 result in dismissal of this action. 28 1 B. Address Changes 2 Plaintiff must file and serve a notice of a change of address in accordance with Rule 3 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 4 relief with a notice of change of address. Failure to comply may result in dismissal of this 5 action. 6 C. Copies 7 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 8 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 9 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 10 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 11 to comply may result in the filing being stricken without further notice to Plaintiff. 12 D. Possible Dismissal 13 If Plaintiff fails to timely comply with every provision of this Order, including these 14 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 15 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 16 to comply with any order of the Court). 17 IT IS ORDERED: 18 (1) Plaintiff’s Motion to Appoint Counsel (Doc. 9) is denied. 19 (2) Count Two is dismissed without prejudice. 20 (3) Defendants Napper and Bailey are dismissed without prejudice. 21 (4) Defendants Maxson, Morga, Snyder, Cote, and Lara in their individual 22 capacities must answer the excessive force claim in Count One. Defendants Byers, 23 McKinney, and Sampson in their individual capacities must answer the due process claims 24 in Count Three. Defendant Sampson in his individual capacity must answer the conditions- 25 of-confinement claim in Count Three. 26 (5) The Clerk of Court must send Plaintiff a service packet including the First 27 Amended Complaint (Doc. 10), this Order, and both summons and request for waiver 28 1 forms for Defendants Maxson, Morga, Snyder, Cote, Lara, Byers, McKinney, and 2 Sampson. 3 (6) Plaintiff must complete and return the service packet to the Clerk of Court 4 within 21 days of the date of filing of this Order. The United States Marshal will not 5 provide service of process if Plaintiff fails to comply with this Order. 6 (7) If Plaintiff does not either obtain a waiver of service of the summons or 7 complete service of the Summons and First Amended Complaint on a Defendant within 90 8 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 9 is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 10 LRCiv 16.2(b)(2)(B)(ii). 11 (8) The United States Marshal must retain the Summons, a copy of the First 12 Amended Complaint, and a copy of this Order for future use. 13 (9) The United States Marshal must notify Defendants of the commencement of 14 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 15 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 16 Order. 17 (10) A Defendant who agrees to waive service of the Summons and First 18 Amended Complaint must return the signed waiver forms to the United States Marshal, not 19 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 20 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 21 personal service. 22 (11) The Marshal must immediately file signed waivers of service of the 23 summons. If a waiver of service of summons is returned as undeliverable or is not returned 24 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 25 the Marshal must: 26 (a) personally serve copies of the Summons, First Amended Complaint, 27 and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil 28 Procedure; and 1 (b) within 10 days after personal service is effected, file the return of 2 service for Defendant, along with evidence of the attempt to secure a waiver of 3 service of the summons and of the costs subsequently incurred in effecting service 4 upon Defendant. The costs of service must be enumerated on the return of service 5 form (USM-285) and must include the costs incurred by the Marshal for 6 photocopying additional copies of the Summons, First Amended Complaint, or this 7 Order and for preparing new process receipt and return forms (USM-285), if 8 required. Costs of service will be taxed against the personally served Defendant 9 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 10 ordered by the Court. 11 (12) Defendants Maxson, Morga, Snyder, Cote, Lara, Byers, McKinney, and 12 | Sampson must answer the relevant portions of the First Amended Complaint or otherwise 13 | respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 15 (13) Any answer or response must state the specific Defendant by name on whose 16 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 17 | does not identify the specific Defendant by name on whose behalf it is filed. 18 (14) This matter is referred to Magistrate Judge Michelle H. Burns pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 20 | authorized under 28 U.S.C. § 636(b)(1). 21 Dated this 7th day of July, 2020. 22 23 ped 6 Cre phtl 4 David G. Campbell 5 Senior United States District Judge 26 27 28