O'Brien v. Garcia

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA — 9 — 10 KORY T. O’BRIEN, Case No.: 3:19-cv-01113-JAH-MDD CDCR #AM-1378, — 11 — ORDER: Plaintiff, — 12 — vs. 1) DISMISSING DEFENDANTS — 13 — AND CLAIMS PURSUANT ALDO GARCIA, Correctional Plant Ops. 14 TO 28 U.S.C. § 1915 (e)(2) AND Supervisor; JORGE SANTANA, 28 U.S.C. § 1915A(b) 15 Associate Warden; DANIEL PARAMO, Retired Former Warden; RAQUEL 16 AND BUCKEL, Associate Warden; PATRICK 17 COVELLO, Warden; C. MURPHY, 2) DIRECTING U.S. MARSHAL Appeals Examiner; M. VOONG, 18 TO EFFECT SERVICE OF FIRST Chief – Office of Appeals, AMENDED COMPLAINT UPON 19 Defendants. DEFENDANT GARCIA PURSUANT 20 TO 28 U.S.C. § 1915 (d) AND Fed. R. Civ. P. 4(c)(3) — 21 — — 22 — 23 Plaintiff Kory T. O’Brien, a prisoner proceeding pro se and incarcerated at Richard 24 J. Donovan Correctional Facility (“RJD”), in San Diego, California, filed this civil rights 25 action pursuant to 42 U.S.C. § 1983 on June 14, 2019. See Compl., ECF No. 1. 26 I. Procedural Background 27 In his original Complaint, Plaintiff claimed various RJD Wardens, a “Plant Ops” 28 Supervisor, and two inmate appeals officials denied him equal protection and exposed 1 him to harmful conditions of confinement in July and August 2017, and then retaliated 2 against him in May 2019 after he continued to complain and file multiple grievances. See 3 Compl., at 1-4, 8, 14. He sought injunctive relief and “damages to be claimed at a later 4 date.” Id. at 19 . Plaintiff did not pay the civil filing fee at the time of filing, but instead 5 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 (a) 6 (ECF No. 2). 7 On August 26, 2019, the Court granted Plaintiff’s Motion to Proceed IFP, but 8 dismissed his Complaint sua sponte and in its entirety based on his failure to state a claim 9 upon which relief can be granted pursuant to the mandatory screening required by 28 10 U.S.C. § 1915 (e)(2) and § 1915A(b). See ECF No. 6. Plaintiff was provided notice of his 11 pleading deficiencies, and was granted leave to amend them. Id. at 8‒17. 12 On September 30, 2019, Plaintiff filed a First Amended Complaint (“FAC”) (ECF 13 No. 7) re-naming all the same Defendants and re-alleging four First, Eighth, and 14 Fourteenth Amendment “Counts” or causes of action. See FAC at 2-23. He continues to 15 seek injunctive relief and an unspecified amount of damages. Id. at 25. 16 II. Screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A 17 A. Standard of Review 18 Because Plaintiff is a prisoner and is proceeding IFP, his FAC, like his original 19 Complaint, also requires a pre-answer screening which the Court conducts sua sponte 20 pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). As Plaintiff is now aware, under 21 these statutes, the Court must dismiss a prisoner’s IFP complaint, or any portion of it, 22 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 23 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 24 (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 25 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 26 the targets of frivolous or malicious suits need not bear the expense of responding.’” 27 Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 28 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108 , 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 5 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for 13 relief [is] ... a context-specific task that requires the reviewing court to draw on its 14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962 , 969 17 (9th Cir. 2009). 18 B. Allegations in FAC 19 As he did previously, Plaintiff divides the claims in his FAC into four separate 20 causes of action. In Count 1, he claims Defendant A. Garcia, a Plant Operations 21 Correctional Supervisor at RJD, violated his First Amendment rights by retaliating 22 against him for having filing numerous CDCR 22s, CDCR 1824s and CDCR 602 inmate 23 appeals related to the lack of clean air vents and cable and power outlets in his cell.1 See 24 FAC at 4‒8. Specifically, Plaintiff claims Garcia, who is “second in command” and — 25 — — 26 — 27 1 In his original Complaint, Plaintiff claimed to have expertise as to both Building 16’s cell ventilation and plumbing systems because he was a licensed general building contractor — 28 — 1 responsible for approving all “work orders,” either authorized or supervised another 2 inmate plumber to limit the flush capabilities in Plaintiff’s cell “because [he] ke[pt] 3 602ing plant operations.” Id. at 5. 4 In Count 2, Plaintiff claims Garcia knew that the ventilation in Plaintiff’s cell was 5 toxic, personally interviewed him in response to his CDCR 602s, and acknowledged the 6 “need for cleaning of the interior of the [ventilation] system,” which was filled with “80‒ 7 90%” of “foreign debri[s].” Plaintiff contends that while Garcia was personally aware of 8 a “substantial risk of serious harm” caused by his exposure to pathogens, carcinogens, 9 and mold, Garcia “ignored obvious dangers” and “failed to take reasonable steps to 10 abate” the harm it caused him. Id. at 9‒13. Plaintiff also claims Defendants Covello, 11 Murphy, Voong, Buckel, and Paramo “forc[ed] [him] to breathe air containing known 12 carcinogens,” but he includes no additional factual allegations with respect to these 13 parties or their actions concerning the ventilation in his cell. Id. at 10. 14 In Count 3, which Plaintiff labels “due process,” he claims Defendants as a group 15 denied him “the fundamental constitutional liberty right to clean air.” Id. at 14. Plaintiff 16 admits this Count “parallels [his] Eighth Amendment claim,” but he asks the Court to 17 liberally construe this claim under the Fourteenth Amendment, because it does not 18 require that he “show a culpable state of mind.” Id. at 15‒16. 19 Finally, in Count 4, Plaintiff alleges Wardens Paramo and Covello signed an 20 “official memo” which requires inmates housed in RJD’s Building 16 to agree by 21 majority vote which television programming is to be broadcast in the dayroom. Id. at 18‒ 22 19. Plaintiff claims this institutional procedure violates his right to equal protection 23 because “he is not receiving the same treatment,” as inmates housed in Building 20. Id. at 24 18. Specifically, Plaintiff claims that because Building 20 is equipped with “coaxial 25 connections” in inmate’s cells, those inmates enjoy the ability to watch “college lectures” 26 in their cells, and without the “undue burden” of having to “purchase both a digital 27 antenna and an extension cord,” and “worry about … conflict,” because they are not 28 “forced to argue with other inmates” in the dayroom. Id. at 19‒20, 22. 1 C. Analysis 2 With respect to Counts 3 and 4, the Court finds Plaintiff’s FAC still fails to state a 3 plausible claim for relief against any of the named Defendants under the Fourteenth 4 Amendment. See 28 U.S.C. § 1915 (e)(2)(B)(ii), § 1915A(b)(1); Watison, 668 F.3d at 5 1112; Wilhelm, 680 F.3d at 1121 . With respect to Counts 1 and 2, the Court finds that 6 while Plaintiff alleges facts sufficient to plausibly support both a First Amendment 7 retaliation and an Eighth Amendment conditions of confinement claim against RJD’s 8 Plant Operations Supervisor, Aldo Garcia, his FAC fails to state either a First or Eighth 9 Amendment deprivation on the part of any other Defendant. 10 1. Count 3 11 Specifically, in Count 3, Plaintiff claims Defendants as a group have violated his 12 Fourteenth Amendment rights by failing to adequately address the deficiencies in RJD’s 13 ventilation which deprives him of the “fundamental constitutional liberty of the right to 14 clean air.” See FAC at 14. He contends “Defendants lack of maintenance and action … 15 would shock the conscience of even a lay person,” and therefore constitutes punishment 16 in violation of substantive due process. Plaintiff admits this claims “parallels [his] Eighth 17 Amendment claim,” as alleged in Count 2. Id. at 15‒16. 18 The “touchstone of due process” is protection against arbitrary actions of the 19 government. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The government violates an 20 individual’s substantive due process rights when it exercises government power against 21 the individual without a legitimate governmental objective. See Cty. of Sacramento v. 22 Lewis, 523 U.S. 833 , 845–46 (1998). Only the most egregious conduct is “arbitrary in the 23 constitutional sense.” Collins v. Harker Heights, 503 U.S. 115, 129 (1992). Indeed, only 24 state action that “shocks the conscience” deprives an individual of substantive due 25 process. Lewis, 523 U.S. at 847 (citing Rochin v. California, 342 U.S. 165 , 172–73 26 (1952)). Whether a state actor’s conduct “shocks the conscience” varies from case to 27 case. Id. at 850; Betts v. Brady, 316 U.S. 455, 462 (1942). But it is clear is that the 28 government’s actions must be more egregious than negligence and must intend to cause 1 harm without a legitimate governmental justification. Lewis, 523 U.S. at 855 (emphasis 2 added). 3 Plaintiff’s inadequate ventilation claims do not meet this demanding standard. At 4 most, his FAC alleges facts to plausibly suggest Defendant Garcia’s deliberate 5 indifference with respect to his respiratory health, see e.g., FAC at 9‒13, but that claim is 6 separately pleaded as Count 2, and is more appropriately analyzed under the Eighth’s 7 Amendment’s cruel and unusual punishment standards. Graham v. Connor, 490 U.S. 8 386, 395 (1989) (holding that if a more specific constitutional amendment—such as the 9 Eighth Amendment—“provides an explicit textual source of constitutional protection” 10 against a particular sort of government behavior, “that Amendment, not the more 11 generalized notion of ‘substantive due process,’ must be the guide for analyzing these 12 claims.”); accord Albright v. Oliver, 510 U.S. 266, 273 (1994); United States v. Lanier, — 13 — 520 U.S. 259 , 272 n.7 (1997). 14 2. Count 4 15 Plaintiff’s equal protection claims against Wardens Paramo and Covello as alleged 16 in Count 4 also fail to state a Fourteenth Amendment claim. See FAC at 17‒23. As this 17 Court has previously noted, the Equal Protection Clause requires that persons similarly 18 situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 , 19 439; Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 20 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 21 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established in two ways. 22 The first method requires a plaintiff to show that the defendant has intentionally 23 discriminated against the plaintiff on the basis of his membership in a protected class. 24 Hartmann, 707 F.3d at 1123 ; Furnace, 705 F.3d at 1030 ; Serrano v. Francis, 345 F.3d 25 1071, 1082 (9th Cir. 2003); Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th 26 Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Under this 27 theory of equal protection, Plaintiff must allege that Defendants’ actions were a result of 28 /// 1 his membership in a suspect class such as race, religion, or alienage. Thornton v. City of 2 St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). 3 As was true with respect to his original pleading, Plaintiff’s FAC still does not 4 contend he is member of any suspect class, nor does it allege Wardens Paramo or Covello 5 failed to equip his cell with a coaxial TV connection based on his membership in any 6 suspect class. Thus, Plaintiff may establish an equal protection claim only if he alleges 7 facts sufficient to plausibly show Covello and Paramo intentionally treated similarly 8 situated inmates differently without a rational basis for doing so. Engquist v. Oregon 9 Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. 10 Olech, 528 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 11 (1972); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica 12 LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). To state an equal protection 13 claim under this “class of one” theory, however, Plaintiff must allege facts to plausibly 14 show that: (1) he is a member of an identifiable class; (2) he was intentionally treated 15 differently from others similarly situated; and (3) there is no rational basis for the 16 difference in treatment. Nurre v. Whitehead, 580 F.3d 1087, 1098 (9th Cir. 2009) (citing 17 Village of Willowbrook, 528 U.S. at 564 ). He must further allege discriminatory intent. 18 See Washington v. Davis, 426 U.S. 229, 239-240 (1976); Serrano, 345 F.3d at 1081-82 ; 19 Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). 20 In his FAC, Plaintiff declares that “even though he is housed in 16 Bldg, [he] is 21 similarly situated when compared to a group of inmates housed in 20 Bldg,” but is 22 discriminated against without “rationality” because “Bldg 20 inmates have cells with 23 multiple power outlets and a coaxial connection.” See FAC at 18. Plaintiff claims inmates 24 in both buildings “have general population programming,” share similar disabilities, ages, 25 religions, and criminal histories, and yet the lack of in-cell outlets in Building 16 results 26 in fewer opportunities to access educational programming and “Prop. 57” credit-earning 27 opportunities. Id. at 17, 20. However, prison officials have “full discretion” to control 28 housing, classification, and access to rehabilitative programs, see Moody v. Daggett, 429 1 U.S. 78 , 88 n.9 (1976), and are afforded wide-ranging deference in implementing and 2 executing those decisions because discretion is needed to preserve internal discipline and 3 maintain institutional security. Bell v. Wolfish, 441 U.S. 520, 547-48 (1979). “Although 4 prisoners are entitled to equal protection, it does not follow that a prison must duplicate 5 every … benefit it provides so that all [prisoners] are treated exactly the same.” Campbell 6 v. Alameida, No. C 03 4984 PJH PR, 2006 WL 2734330 , at *5 (N.D. Cal. Sept. 25, 7 2006), aff’d, 295 F. App’x 130 (9th Cir. 2008). 8 Plaintiff also contends the different wiring in Buildings 16 and 20 is “without 9 rationality,” FAC at 18, but then claims a purported lack of “funding” is to blame. See 10 FAC at 21. “[E]qual protection is not a license for courts to judge the wisdom, fairness, 11 or logic of legislative choices.” Fed. Comm. Com’n v. Beach Comm., Inc., 508 U.S. 307 , 12 313 (1993). Thus, a “classification that neither proceeds along suspect lines or infringes 13 fundamental constitutional rights must be upheld against equal protection challenge if 14 there is any reasonably conceivable state of facts that could provide a rational basis for 15 the classification.” Id.; see also Hill v. Kernan, No. 2:19‒CV‒0184‒TLN‒DB P, 2019 16 WL 1259499 , at *4 (E.D. Cal. Mar. 19, 2019), report and recommendation adopted, No. 17 2:19-CV-00184-TLN-DB, 2019 WL 2465275 (E.D. Cal. June 13, 2019). 18 The Court also notes that Plaintiff concedes other inmates in Building 16 face the 19 same facility restrictions as he does. See FAC at 17‒18. Thus, his equal protection claim 20 does not appear to arise from his “unique treatment,” which is the theory upon which a 21 “class of one” claim depends. Nurre, 580 F.3d at 1098 . Finally, he also admits 22 educational programming remains available for him to view in Bldg. 16’s dayroom, and 23 that he may “purchase both a digital antenna and an extension cord” if he wishes to 24 access educational programming privately in his cell. See FAC at 18‒19. While Plaintiff 25 claims this places an “undue financial burden” on him, id. at 18, indigency is not a 26 suspect classification, see Taylor v. Delatoore, 281 F.3d 844, 849 (9th Cir. 2002); 27 Pleasant v. Cty. of Merced, 669 F. App’x 388 (9th Cir. 2016), and “different treatment of 28 /// 1 unlike groups does not support an equal protection claim.” Thornton, 425 F.3d at 1167 , 2 1168. 3 At bottom, Plaintiff continues to claim that the electrical wiring in the housing 4 facility to which he has been assigned does not permit him the same in-cell television 5 viewing opportunities as another facility would within the same prison. But “[e]qual 6 protection does not require identity of treatment, Garrison v. United States, 930 F.2d 920 7 (9th Cir. 1991), and “[a]n equal protection claim will not lie by conflating all persons not 8 injured into a preferred class receiving better treatment.” Thornton, 425 F.3d at 1167 ; see 9 also Furnace, 705 F.3d at 1031 ; cf. Wilson v. Nesbeth, 341 F. App’x 291, 293 (9th Cir. 10 2009) (affirming district court’s dismissal of prisoner’s equal protection claim because he 11 failed to allege facts suggesting that “Enhanced Out Patient” inmates were similarly 12 situated to other inmates); Hoban v. California Dep’t of Corr., No. 1:09-CV-1752‒MJS‒ 13 PC, 2010 WL 5136026 , at *3 (E.D. Cal. Dec. 10, 2010) (sua sponte dismissing equal 14 protection claims alleging “Class III prisoners held in other parts of the prison [were] 15 afforded access to programming and allowed to possess personal fans, televisions, and 16 other electronic devices, while those housed in the Gymnasium [were] not.”). 17 3. Counts 1 & 2 18 Finally, with respect to Counts 1 and 2, the Court finds Plaintiff’s FAC does 19 contain factual allegations sufficient to plausibly state both a First Amendment retaliation 20 claim and an Eighth Amendment conditions of confinement claim‒‒but with respect to 21 Defendant Garcia only. See 28 U.S.C. §§ 1915 (e)(2) and 1915A(b); Wilhelm, 680 F.3d at 22 1123; Iqbal, 556 U.S. at 678 ; Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) 23 (“Within the prison context, a viable claim of First Amendment retaliation entails five 24 basic elements: (1) An assertion that a state actor took some adverse action against an 25 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 26 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 27 reasonably advance a legitimate correctional goal.”); Thomas v. Ponder, 611 F.3d 1144 , 28 1150 (9th Cir. 2010) (to sustain an Eighth Amendment claim, a prisoner must 1 “objectively show that he was deprived of something ‘sufficiently serious,’ and make a 2 subjective showing that the deprivation occurred with deliberate indifference to [his] 3 health or safety.” (citations omitted). 4 Because Plaintiff’s FAC fails to provide any factual allegations which plausibly 5 describe any personal participation on the parts of the remaining Defendants with respect 6 to either the First Amendment retaliation or Eighth Amendment conditions of 7 confinement claims comprising Counts 1 and 2, see Iqbal, 556 U.S. at 676 (“Because 8 vicarious liability is inapplicable to … § 1983 suits, a plaintiff must plead that each 9 Governmental‒official defendant, through the official’s own individual actions, has 10 violated the Constitution.”); and the Fourteenth Amendment due process and equal 11 protection claims set forth in Counts 3 and 4 of Plaintiff’s FAC fail to state a plausible 12 claim for relief in their entirety, Defendants Santana, Paramo, Buckel, Covello, Murphy, 13 and Voong are hereby DISMISSED as parties to this action pursuant to 28 U.S.C. 14 § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b). 15 However, the Court will direct the U.S. Marshal to effect service of summons with 16 respect to Plaintiff’s FAC upon RJD’s Correctional Plant Ops Supervisor, Aldo Garcia, 17 on his behalf. See 28 U.S.C. § 1915 (d) (“The officers of the court shall issue and serve all 18 process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court 19 may order that service be made by a United States marshal or deputy marshal ... if the 20 plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 .”). 21 III. Conclusion and Orders 22 For all the reasons discussed, the Court hereby: 23 1. DISMISSES Defendants JORGE SANTANA, DANIEL PARAMO, 24 RACQUEL BUCKEL, PATRICK COVELLO, C. MURPHY, and M. VOONG based on 25 Plaintiff’s failure to state a claim against them pursuant to 28 U.S.C. § 1915 (e)(2) and 26 § 1915A(b) and DIRECTS the Clerk of the Court to terminate them as parties to this 27 case. 28 /// 1 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended 2 Complaint (ECF No. 7) upon Defendant ALDO GARCIA and forward it to Plaintiff 3 along with a blank U.S. Marshal Form 285 for this Defendant only. In addition, the Clerk 4 will provide Plaintiff with a certified copy of this Order, a certified copy of the Court’s 5 August 26, 2019 Order Granting IFP (ECF No. 6), his First Amended Complaint (ECF 6 No. 7), and a summons so that he may serve them upon Defendant GARCIA. Upon 7 receipt of these materials, which comprise the “IFP Package,” Plaintiff must complete the 8 Form 285 as completely and accurately as possible, include an address where Defendant 9 Garcia may be served, see S.D. Cal. CivLR 4.1.c, and return it to the United States 10 Marshal according to the instructions the Clerk provides in the letter included in his IFP 11 package. 12 3. ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint 13 and summons upon Defendant GARCIA as directed by Plaintiff on the USM Form 285 14 provided to him. All costs of that service will be advanced by the United States. See 28 15 U.S.C. § 1915 (d); Fed. R. Civ. P. 4(c)(3). 16 4. ORDERS Defendant GARCIA, once served, to reply to Plaintiff’s First 17 Amended Complaint within the time provided by the applicable provisions of Federal 18 Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may 19 occasionally be permitted to “waive the right to reply to any action brought by a prisoner 20 confined in any jail, prison, or other correctional facility under section 1983,” once the 21 Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915 (e)(2) and 22 § 1915A(b), and thus, has made a preliminary determination based on the face on the 23 pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” 24 defendant is required to respond). 25 5. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 26 serve upon Defendant GARCIA, or, if appearance has been entered by counsel, upon 27 Defendant’s counsel, a copy of every further pleading, motion, or other document 28 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 1 ||include with every original document he seeks to file with the Clerk of the Court, a 2 || certificate stating the manner in which a true and correct copy of that document has been 3 || was served on the Defendant or his counsel, and the date of that service. See S.D. Cal. 4 || CivLR 5.2. Any document received by the Court which has not been properly filed with 5 || the Clerk, or which fails to include a Certificate of Service upon the Defendant, may be 6 || disregarded. 7 IT IS SO ORDERED. — 8 — 9 || Dated: December 20, 2019 VU 10 Yon. John A. Houston ll Ynited States District Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 12 a ee