Williams v. Newsom

• Court: District Court, S.D. California
• Decided: February 11, 2021
• Docket: 3:20-cv-02398
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RODNEY ALLEN WILLIAMS, Case No.: 3:20-cv-02398-GPC-AHG CDCR #H-98762, 12 ORDER: Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 (ECF No. 2); GAVIN NEWSOM; KATHLEEN

16 ALLISON; MARCUS POLLARD; CCI 2) DISMISSING CLAIMS AND GODINEZ; CC2 E. AUKERMAN; DR. 17 DEFENDANTS FOR FAILURE TO YUSUFZIE; CMF; ADAMS; DR. STATE A CLAIM PURSUANT TO 28 18 BLASDELLS; CALIFORNIA U.S.C. § 1915(e)(2)(B) AND 28 U.S.C. CORRECTIONAL HEALTH CARE 19 § 1915A(b) ; SERVICES; DOES 1 TO 5,

20 Defendants. 3) DISMISSING DEFENDANTS 21 PURSUANT TO FRCP 21;

22 4) DIRECTING USMS TO EFFECT 23 SERVICE OF COMPLAINT ON REMAINING DEFENDANTS 24

25 26 Plaintiff Rodney Allen Williams (“Plaintiff”), currently incarcerated at Richard J. 27 Donovan Correctional Facility (“RJD”), is proceeding pro se in this action seeking 28 damages and injunctive relief for alleged violations of the Americans with Disabilities Act 1 (“ADA”) and for violations of the Eighth Amendment under 42 U.S.C. Section 1983. (See 2 generally ECF No. 1-2, Compl.) 3 Plaintiff did not prepay the $402 civil filing fee required by 28 U.S.C. Section 4 1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis 5 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.) 6 I. Motion to Proceed In Forma Pauperis 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 12 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 13 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 14 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 15 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 16 dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 17 Cir. 2002). 18 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 19 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 20 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 21 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 22 trust account statement, the Court assesses an initial payment of 20% of (a) the average 23 monthly deposits in the account for the past six months, or (b) the average monthly balance 24 25 26 1 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 in the account for the past six months, whichever is greater, unless the prisoner has no 2 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 3 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 4 month’s income, in any month in which his account exceeds $10, and forwards those 5 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 6 136 S. Ct. at 629. 7 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 8 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. 9 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as 10 well as the attached prison certificate verifying his available balances. (See ECF No. 4, at 11 1-3.) These documents show that Plaintiff had an available balance of $0.00 at the time of 12 filing. (See id.) 13 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 14 declines to impose a partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1) because his 15 prison certificate indicates he may currently have “no means to pay it.” See 28 U.S.C. 16 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 17 civil action or appealing a civil action or criminal judgment for the reason that the prisoner 18 has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d 19 at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal 20 of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 21 available to him when payment is ordered.”). Instead, the Court directs the Secretary of 22 the CDCR, or her designee, to collect the entire $350 balance of the filing fees required by 23 28 U.S.C. Section 1914 and to forward them to the Clerk of the Court pursuant to the 24 installment payment provisions set forth in 28 U.S.C. Section1915(b)(1). 25 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 26 1915A(b) 27 A. Standard of Review 28 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 1 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under 2 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion 3 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 4 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 5 (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 6 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to 7 ensure that the targets of frivolous or malicious suits need not bear the expense of 8 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 9 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 10 “The standard for determining whether a plaintiff has failed to state a claim upon 11 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 12 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 13 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 14 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 15 standard applied in the context of failure to state a claim under Federal Rule of Civil 16 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 17 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 19 1121. 20 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 21 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 22 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 23 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 25 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 26 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 27 / / / 28 / / / 1 B. Plaintiff’s Factual Allegations 2 Plaintiff has been an inmate housed in CDCR facilities since November of 2000. 3 See Compl., ECF No. 1-2 at 4. Plaintiff first “informed the administration” in 2006 that 4 due to his height, six feet and nine inches, he “couldn’t fit on the prison bunk bed.” Id. 5 Plaintiff’s claims the Warden for Pelican Bay State Prison responded to his request by 6 stating that it is “unreasonable to expect modification to any one cell or the structure of that 7 cell to accommodate your stature.” Id. Plaintiff alleges that he has “incurred many chronic 8 pain ailments” for decades and as a result, he has been “given appliances to help Plaintiff 9 ambulate” including a “cane, knee braces, back brace, walker, mobility vest,” and chronos 10 “restricting Plaintiff from top bunk bed access and top tier access.” Id. at 4-5. 11 Plaintiff was “transferred from California Men’s Colony to California Health Care 12 Facility” (CHCF”) but was later informed by a Lieutenant Valasquez2 that he was “not to 13 be housed at CHCF because of Plaintiff’s maximum security level of care.” Id. at 5. 14 “Weeks after arriving at CHCF,” Plaintiff was transferred to California State Prison – Los 15 Angeles County (“CSP-LAC”).” Id. Plaintiff “experienced extreme depression and was 16 sent to CHCF” in November of 2019 to be housed in the “mental health section of the 17 facility.” Id. at 5-6. 18 Plaintiff informed his Primary Care Provider (“PCP”) at CHCF, Dr. Yusufzie, that 19 he “has been in prison for 23 years and the first ten years of that prison sentence [Plaintiff] 20 had to sleep in the fetal position on the bed to be able to fit on the bed” and informed Dr. 21 Yusufzie that he had “hit his head many times on the prison cell door ceiling.” Id. at 6. 22 Dr. Yusufzie “wrote a doctor’s order [on] May 28, 2020 stated ‘Patient Williams needs a 23 bed adequate for his body length.’” Id. However, in June of 2020, Dr. Yusufzie informed 24 Plaintiff that his supervisor had “denied his order[].” Id. at 7. 25 26 27 28 1 On October 15, 2020, “Plaintiff left CHCF and was transferred to [RJD].” Id. Upon 2 arrival “Plaintiff immediately informed the intake Receiving & Release Lieutenant” that 3 he should not be housed at RJD due to his “chronic care ailments in conjunction with 4 Plaintiff’s inability to fit within the cell.” Id. The “intake officer informed Plaintiff to 5 submit a grievance” which Plaintiff did on October 17, 2020 and remains “pending.” Id. 6 On November 5, 2020, Plaintiff was seen by his new PCP, Dr. Blasdells. See id. 7 Plaintiff “explained his many medical ailments” and “included the fact that Plaintiff 8 couldn’t live in the standard prison cell due to his height in conjunction with his painful 9 medical ailments.” Id. at 8. Plaintiff requested Outpatient Housing Unit (“OHU”) status 10 which would “allow for Plaintiff to be housed at the prison hospital which is equipped with 11 the amenities for Plaintiff’s height and medical needs.” Id. at 8. 12 On November 9, 2020, Plaintiff was “summon[ed] to the medical department” and 13 on arrival he was “instructed to relinquish all his DME3.” Id. “Nursing staff informed 14 Plaintiff [that] Dr. Blasdells ordered all [of] Plaintiff’s medical appliances confiscated.” 15 Id. Plaintiff “refused” and he was told by custody staff that “their job was to take away all 16 [of] Plaintiff’s medical mobility appliances.” Id. Plaintiff “informed custody staff” that 17 he “would not be able to ambulate without the DME appliances.” Id. Plaintiff was later 18 informed by Dr. Blasdells that he was “instructed by [his] supervisor to discontinue all of 19 Plaintiff’s DME, any mobility appliances, and tier regulations.” Id. 20 On November 8, 2020, Plaintiff was informed that he “would be receiving a 21 cellmate” and he informed “custody and new cellmate” that he “sleeps on the floor due to 22 his body size” and “many chronic pain ailments.” Id. One day Plaintiff’s cellmate “had 23 to use the restroom and forgot Plaintiff was sleeping on the ground.” Id. at 9. Plaintiff’s 24 cellmate “jumped off the top bunk” and “landed on Plaintiff’s back.” Id. Plaintiff was 25 “transferred to the hospital” where he “received treatment.” Id. Plaintiff “pleaded with the 26 27 28 1 doctor on call” to not send Plaintiff back to his cell but he was later sent back and he still 2 “sleeps on the ground yet now Plaintiff is somewhat under the bed.” Id. 3 Plaintiff seeks $350,000 in compensatory damages, $350,000 in punitive damages, 4 and injunctive relief. See id. at 15. 5 C. Analysis 6 1. Supervisory Liability 7 Some of Plaintiff’s claims against Governor Newsom, Kathleen Allison, and Marcus 8 Pollard are based on their supervisory roles. (See Compl., ECF No. 1-2 at 2, 10.) However, 9 Plaintiff fails to make any factual allegations that Newsom, Allison, or Pollard had any 10 personal involvement or knowledge of the alleged constitutional violations. Without 11 “further factual enhancement” to show how, or to what extent, Defendants Newsom, 12 Allison, and Pollard may be held personally liable for any constitutional injury, the Court 13 finds Plaintiff’s claims against them must necessarily rest on a theory of vicarious liability. 14 See Iqbal, 556 U.S. at 676–77. But “[v]icarious liability is inapplicable to . . . § 1983 suits, 15 [and] a plaintiff must plead that each Government-official defendant, through [his] own 16 individual actions, has violated the Constitution,” in order to plead a plausible claim for 17 relief. Id. at 676; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) 18 (supervisor may be held liable under Section 1983 only if there is “a sufficient causal 19 connection between the supervisor’s wrongful conduct and the constitutional violation”) 20 (citations and internal quotation marks omitted); Fayle v. Stapley, 607 F.2d 858, 862 (9th 21 Cir. 1979) (when a named defendant holds a supervisorial position, the causal link between 22 the defendant and the claimed constitutional violation must be specifically alleged); 23 Victoria v. City of San Diego, 326 F. Supp. 3d 1003, 1013 (S.D. Cal. 2018) (“Liability 24 under § 1983 arises only upon a showing of personal participation by the defendant.”); 25 Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) 26 (even pro se plaintiff must “allege with at least some degree of particularity overt acts 27 which defendants engaged in” in order to state a claim). 28 / / / 1 Here, Plaintiff alleges no link between the alleged constitutional violations and any 2 action purportedly taken by any of these Defendants. Accordingly, the Eighth Amendment 3 claims against Defendants Newsom, Allison, and Pollard are DISMISSED for failing to 4 state a claim upon which relief may be granted. 5 2. ADA claims 6 However, some of Plaintiff’s claims against Newsom, Allison, and Pollard arise in 7 their official capacity pursuant to the American with Disabilities Act (“ADA”). Title II of 8 the ADA provides that: “[N]o qualified individual with a disability shall, by reason of such 9 disability, be excluded from participation in or be denied the benefits of the services, 10 programs, or activities of a public entity, or be subjected to discrimination by any such 11 entity.” 42 U.S.C. § 12132; see also McGary v. Portland, 386 F.3d 1259, 1265 (9th Cir. 12 2004). “The ADA thus not only prohibits public entities from discriminating against the 13 disabled, it also prohibits public entities from excluding the disabled from participating in 14 or benefiting from a public program, activity, or service ‘solely by reason of disability.’” 15 Lee v. City of Los Angeles, 250 F.3d 668, 690-91 (9th Cir. 2001) (emphasis in original). 16 The ADA applies to state prisons. See Pennsylvania Dep’t of Corr. v. Yeskey, 524 17 U.S. 206, 209 (1998). Nevertheless, ADA claims in the prison context “must be analyzed 18 ‘in light of effective prison administration.’” See Pierce v. Cnty. of Orange, 526 F.3d 1190, 19 1216 (9th Cir. 2008) (quoting Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994)). 20 Accordingly, to prevail on an ADA claim in the prison context, “inmates must show that 21 the challenged prison policy or regulation is unreasonable.” See id. at 1216-17 (citing 22 Gates, 39 F.3d at 1447). 23 As an initial matter, the Ninth Circuit has held that Title II of the ADA allows 24 prisoners to bring suit against state officials in their official, not individual, capacities. See 25 Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003). As a result, Plaintiff’s 26 ADA claims against these Defendants in their individual capacity must be dismissed. See 27 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b). 28 / / / 1 In addition, Plaintiff must allege that he “was either excluded from participation in 2 or denied the benefits of the [prison’s] services, programs, or activities, or was otherwise 3 discriminated against by the [prison],” see McGary, 386 F.3d at 1265, “by reason of [his] 4 disability.” See 42 U.S.C. § 12132 (emphasis added). 5 Based on the factual allegations set forth above, the Court finds that Plaintiff has 6 alleged facts sufficient to state a claim under the ADA against CDCR officials in their 7 official capacity. 8 3. Eighth Amendment claims 9 a. Defendant Blasdells 10 The Eighth Amendment requires that inmates have “ready access to adequate 11 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate 12 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle 13 v. Gamble, 429 U.S. 97, 104 (1976). Based on the allegations set forth above regarding 14 Defendant Blasdells, the Court finds that Plaintiff’s Eighth Amendment allegations against 15 this Defendant are sufficient to survive the “low threshold” set for sua sponte screening 16 pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123. 17 b. Defendants Godinez and Aukerman 18 However, Plaintiff’s Complaint fails to contain any specific factual allegations 19 against Defendants Godinez and Aukerman and contains no “further factual enhancement” 20 which describes how, or to what extent, these individuals became aware of, or were actually 21 aware of, any alleged Eighth Amendment violations. “Because vicarious liability is 22 inapplicable to . . . §1983 suits, a plaintiff must plead that each government-official 23 defendant, through the official’s own individual actions, has violated the Constitution.” 24 Iqbal, 556 U.S. at 676; see also Jones, 733 F.2d at 649 (even pro se plaintiff must “allege 25 with at least some degree of particularity overt acts which defendants engaged in” in order 26 to state a claim). 27 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks v. 28 United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must be 1 individualized and focus on the duties and responsibilities of each individual defendant 2 whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. 3 Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 4 (1976). There are no factual allegations linking Defendants Godinez or Aukerman as to 5 any of his claims regarding alleged Eighth Amendment violations. 6 Thus, for these reasons, the Court finds that Plaintiff’s claims against Godinez and 7 Aukerman must be dismissed for failing to state a claim upon which relief may be granted. 8 4. California Correctional Health Care Services 9 Plaintiff’s claims against the California Correctional Health Care Services 10 (“CCHCS”) must also be dismissed. The CCHCS is not a “person” subject to suit under 11 Section 1983 and is entitled to immunity from suit for monetary damages under the 12 Eleventh Amendment. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53-54 (1996); 13 Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001) (citing Hale v. Arizona, 993 F.2d 14 1387, 1398-99 (9th Cir. 1993)); see also Dragasits v. California, No. 3:16-cv-01998-BEN- 15 JLB, 2016 WL 680947, at *3 (S.D. Cal. Nov. 15, 2016) (“The State of California’s 16 Department of Corrections and Rehabilitation and any state prison, correctional agency, 17 sub-division, or department under its jurisdiction, are not ‘persons’ subject to suit under 18 § 1983.” (citing Groten, 251 F.3d at 851)). Accordingly, Plaintiff’s claims against CCHCS 19 are dismissed sua sponte for failure to state a plausible claim. See 28 U.S.C. 20 § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 21 5. Misjoinder 22 Plaintiff’s claims against Defendants Yusufzie and CME Adams arose when he was 23 previously housed at CHCF and before his arrival at RJD. (See Compl. at 6-7.) Federal 24 Rule of Civil Procedure 20 provides that a plaintiff may bring claims against several 25 defendants in the same action only if “any right to relief is asserted against them jointly, 26 severally, or in the alternative with respect to or arising out the same transaction, 27 occurrence, or series of transactions or occurrences” and “any question of law or fact 28 common to all defendants will arise in the action.” See Fed. R. Civ. P. 20(a)(2)(A)-(B). 1 Plaintiff’s Complaint does not plausibly allege that his claims against Defendants 2 Yusufzie and CME Adams arose out of the “same transaction, occurrence, or series of 3 transactions or occurrences” that occurred later at RJD. See id. Accordingly, the Court 4 finds that these claims are misjoined and therefore applies Rule 21. See Coughlin v. 5 Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). Under Rule 21, when the Court finds 6 misjoinder, “on its own,” the Court may “drop a party” or “sever any claim against a party.” 7 See Fed. R. Civ. P. 21. The Court therefore severs Plaintiff’s claims against Defendants 8 Yusufzie and CME Adams from this action and directs the Clerk of the Court to terminate 9 Defendants Yusufzie and CME Adams as parties. Plaintiff may, if he chooses, pursue these 10 claims by filing a separate action against Defendant Yusufzie and CME Adams in the 11 proper venue. 12 III. Conclusion and Orders 13 Good cause appearing, the Court: 14 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section 15 1915(a) (ECF No. 2). 16 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from the 17 full $350 filing fee owed by collecting monthly payments from Plaintiff’s account in an 18 amount equal to twenty percent (20%) of the preceding month’s income and forwarding 19 those payments to the Clerk of the Court each time the amount in the account exceeds $10 20 pursuant to 28 U.S.C. Section 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY 21 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 23 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 24 942883, Sacramento, California 94283-0001. 25 4. DISMISSES Defendants Yusufzie and CME Adams pursuant to Federal Rule 26 of Civil Procedure 21 and without prejudice to re-filing in a separate action. The Court 27 further DIRECTS the Clerk of the Court to terminate Defendants Yusufzie and CME 28 Adams as parties to this action. 1 5. DISMISSES Defendants Godinez and Aukerman for failing to state a claim 2 upon which relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and 3 Section 1915A(b)(1). 4 6. DISMISSES Defendant California Correctional Healthcare Services for 5 seeking monetary relief against immune defendants pursuant to 28 U.S.C. Section 6 1915(e)(2)(B) and Section 1915A(b). 7 7. DISMISSES Plaintiff’s claims against Defendants Newsom, Allison, and 8 Pollard in their individual capacity sua sponte for failure to state a claim upon which relief 9 may be granted pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b); 10 8. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 11 1) upon Defendants Newsom, Allison, Pollard, and Blasdells and forward it to Plaintiff 12 along with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the 13 Clerk will provide Plaintiff with a certified copy of this Order, a certified copy of his 14 Complaint, and the summons so that he may serve the Defendants. Upon receipt of this 15 “IFP Package,” Plaintiff must complete the Form 285 as completely and accurately as 16 possible, include an address where these Defendants may be served, see S.D. Cal. Civ. 17 L.R. 4.1.c, and return it to the United States Marshal according to the instructions the Clerk 18 provides in the letter accompanying his IFP package; 19 9. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 20 upon Defendants Newsom, Allison, Pollard, and Blasdells as directed by Plaintiff on the 21 USM Form 285 provided to him. All costs of that service will be advanced by the United 22 States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); 23 10. ORDERS the Defendants Newsom, Allison, Pollard, and Blasdells, once 24 served, to reply to Plaintiff’s Complaint within the time provided by the applicable 25 provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a 26 defendant may occasionally be permitted to “waive the right to reply to any action brought 27 by a prisoner confined in any jail, prison, or other correctional facility under section 1983,” 28 once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. Sections 1 |] 1915(e)(2) and 1915A(b), and thus, has made a preliminary determination based on the 2 on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the 3 merits,” defendant is required to respond); and 4 11. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 5 ||serve upon the Defendants, or, if appearance has been entered by counsel, upon 6 Defendants’ counsel, a copy of every further pleading, motion, or other document 7 ||submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 8 |{include with every original document he seeks to file with the Clerk of the Court, a 9 certificate stating the manner in which a true and correct copy of that document has been 10 || was served on the Defendants or their counsel, and the date of that service. See S.D. Cal. 11 |/Civ. L.R. 5.2. Any document received by the Court which has not been properly filed with 12 || the Clerk, or which fails to include a Certificate of Service upon the Defendants, may be 13 || disregarded. 14 IT IS SO ORDERED. 15 Dated: February 11, 2021 72 16 Hon. athe Ck 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 13