Jackson v. Covello et.al.

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA — 9 — 10 RICARDO JACKSON, Case No.: 3:19-cv-2444 JAH MDD CDCR #AK-4312, — 11 — ORDER: (1) DISMISSING CLAIMS Plaintiff, 12 AND DEFENDANTS PURSUANT TO vs. 28 U.S.C. § 1915 (e)(2) & § 1915A; AND — 13 — (2) DIRECTING USMS OF FIRST P. COVELLO; J. JUAREZ; SERGEANT 14 AMENDED COMPLAINT ON ANDERSON; CORRECTIONAL REMAINING DEFENDANTS 15 OFFICER MARTINEZ; A. CANEDO; A. TAYLOR-GARCIA; R. FLORES, 16 [ECF No. 45] Defendants. — 17 — — 18 — — 19 — — 20 — 21 I. Procedural History 22 Plaintiff Ricardo Jackson, a prisoner currently incarcerated at the California Health 23 Care Facility (“CHCF”), proceeding pro se in this civil rights action pursuant to 42 24 U.S.C. § 1983 initially filed this action in the Northern District of California on 25 September 13, 2019. (See ECF No. 1.) This matter was transferred to this Court on 26 December 18, 2019 as the claims giving rise to the action occurred at the Richard J. 27 Donovan Correctional Facility (“RJD”). (See ECF No. 17.) 28 / / / 1 On February 26, 2020, this Court granted Plaintiff leave to proceed in forma 2 pauperis, denied his request for appointment of counsel, denied his motion for 3 preliminary injunction, and dismissed some of his claims in his original Complaint 4 pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A. (See ECF No. 23.) However, the Court 5 found that Plaintiff had pleaded First Amendment retaliation claims sufficient to 6 withstand the sua sponte screening required by 28 U.S.C. § 1915 (e)(2) and § 1915A as to 7 Defendant Flores. (See id. at 11.) 8 Plaintiff was given the option to either notify the Court of his intention to proceed 9 with his First Amendment retaliation claims against Flores only or file an amended 10 pleading correcting all the deficiencies of pleading identified by the Court in the February 11 26, 2020 Order. (Id. at 12.) Instead, Plaintiff filed a Notice of Appeal to the Ninth 12 Circuit Court of Appeals of the Court’s Order. (See ECF No. 24.) However, on 13 September 2, 2020, Plaintiff’s appeal was dismissed for failure to prosecute. (See ECF 14 No. 35.) 15 Plaintiff also requested that this Court reconsider the February 26, 2020 ruling in 16 its entirety, including the rulings on Plaintiff’s IFP motion and motion to appoint counsel. 17 (See ECF No. 30.) Because Plaintiff failed to identify any intervening change in 18 controlling law or show that the Court committed clear error in the February 26, 2020 19 Order, his Motion for Reconsideration [ECF No. 30] was denied. (See ECF No. 39.) 20 However, the Court did give Plaintiff sixty (60) days from November 10, 2020 to file an 21 amended pleading. (See id.) 22 After remand, on January 27, 2022, the Court issued an Order to Show Cause 23 (“OSC”) why this entire action should not be dismissed for failing to prosecute. (See 24 ECF No. 43.) Plaintiff filed a response to the Court’s OSC, the Court vacated the OSC 25 and allowed Plaintiff to file a First Amended Complaint (“FAC”) on April 7, 2022. (See 26 ECF Nos. 44, 45, 46.) 27 / / / 28 / / / 1 II. Screening Pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b) 2 A. Standard of Review 3 As the Court previously informed Plaintiff, because he is a prisoner and is 4 proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C. 5 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 6 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state 7 a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 8 F.3d 1122 , 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915 (e)(2)); 9 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 10 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 11 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 12 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 13 680, 681 (7th Cir. 2012)). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 20 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 21 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 22 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 25 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for 26 relief [is] ... a context-specific task that requires the reviewing court to draw on its 27 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 28 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 1 this plausibility standard. Id. 2 B. Plaintiff’s Allegations 3 On December 22, 2015, Plaintiff alleges that an inmate “was forced” into a cell 4 with him. (See FAC at 5.) Plaintiff complained to an unnamed correctional officer who 5 purportedly told Plaintiff he “must not ask him any questions.” (Id.) Plaintiff told this 6 unnamed correctional officer that he was going to “write him up for retaliation” and in 7 response, this officer searched Plaintiff’s cell and “illegally took property items from the 8 cell.” (Id.) 9 On April 4, 2016, Plaintiff appeared before Defendant Flores (“Flores”) at a 10 Classification Committee hearing at which time Plaintiff claims he told Flores about the 11 December 2015 cell incident. (See id.) Plaintiff alleges Flores told the committee that 12 Plaintiff is “one who likes to file grievances against staff and officials.” (Id.) Flores told 13 the committee that Plaintiff is “clear for double cell.” (Id.) 14 Plaintiff appeared again before the classification committee on December 27, 15 2016. (See id. at 7.) Flores again presided over the hearing and again “deem[ed] 16 [Plaintiff] double cell clear.” (Id.) Plaintiff filed a grievance against Flores on January 17 14, 2017 but “it went unanswered.” (Id.) 18 In February of 2017, Defendant Canedo (“Canedo”) called Plaintiff to the program 19 office for a “RVR/115 hearing” for which Canedo was the hearing officer. (Id.) Plaintiff 20 alleges Canedo said to him “oh, so you’re the inmate who likes to file grievances against 21 staff and officials?” (Id. at 8.) Canedo asked Plaintiff if he had any witnesses for his 22 hearing and Plaintiff informed him that “Dr. John Hodges” is his witness and requested 23 that he be present at the hearing.” (Id.) However, Canedo informed Plaintiff that he was 24 going to find him guilty, that he had “spoken to seven nurses, and they told him they 25 don’t know what Plaintiff Jackson is talking about.” (Id.) Plaintiff was assessed a thirty 26 (30) loss of privileges. (See id.) 27 Two years later, on February 12, 2018, Plaintiff’s cell was searched and “several 28 personal items where taken from Plaintiff’s cell” in retaliation for filing grievances. (Id. 1 at 9.) When Plaintiff discovered items were missing, he notified Sergeant Keener of the 2 missing items. (See id.) He claims Keener told him that she would “check on all the 3 items/property taken” but she “never did.” (Id.) Plaintiff filed a grievance seeking the 4 return of the property but received no response. (See id.) 5 On November 19, 2018, Canedo called Plaintiff to the program office for “another 6 RVR/115 hearing” on the “same issue for not showing up for job assignments.” (Id. at 7 10.) Plaintiff claims Canedo told him “I remember you, you’re the inmate who likes to 8 write staff up.” (Id.) Plaintiff asked Canedo to again call Dr. Hodges as his witness. 9 (See id.) Canedo called Dr. Hodges and asked him about Plaintiff’s “limited duty 10 unassigned status.” (Id.) Dr. Hodges told Canedo that Plaintiff has a “permanent 11 disability, limited duty, and unassigned” and he is “high risk medical and cannot be 12 assigned.” (Id.) This purportedly caused Canedo to get “upset and rudely hung up the 13 phone on doctor” and told Plaintiff he was finding him guilty.” (Id.) Plaintiff lost “good 14 time credit” as a result of the guilty finding. (Id. at 11.) 15 On February 15, 2019, there was a riot at RJD. (See id. at 12.) Plaintiff alleges 16 prison officials “ignore the serious risk of danger to inmates with disabilities who can get 17 hurt easily.” (Id.) Plaintiff claims as a result, he lives “every day not knowing and 18 wondering when and what is going to happen to us.” (Id. at 13.) 19 On January 16, 2019, Plaintiff was called to the program office by Defendant A. 20 Taylor-Garcia (“Taylor-Garcia”) for a classification committee hearing. (See id.) 21 Plaintiff told Taylor-Garcia that the information she had about him was “not correct” and 22 it was false information prepared by Flores and Canedo. (Id.) Plaintiff again asked for 23 Dr. Hodges to be called by Taylor-Garcia but she refused to do so. (See id. at 14.) 24 Plaintiff requested that Defendant Martinez (“Martinez”), who is Taylor-Garcia’s 25 supervisor, to also call Dr. Hodges. (See id.) — 26 — — 27 — — 28 — 1 Defendant Plascencia (“Plascencia”) called Plaintiff to her office and told him that 2 it “was time for Plaintiff’s annual classification committee hearing.” (Id.at 20.) Plaintiff 3 told Plascencia about his “past in-cell incidents which includes physical assault and 4 battery in the cell by cellmates.” (Id.) Plascencia was also informed that Plaintiff 5 “cannot be assigned to any work program.” (Id.) Plaintiff also gave Plascencia 6 “documentation signed by Dr. John Hodges that clearly stated that Plaintiff has a 7 permanent disability.” (Id.) On December 10, 2020, Plaintiff appeared before the 8 classification committee. Defendant Carrillo (“Carrillo”) was “head of the hearing” and 9 Plascencia was also present. (Id. at 21.) Plascencia told Plaintiff that she is “putting 10 [him] up for transfer” and he is “clear for double cell and dorm living.” (Id.) Plaintiff 11 claims Carrillo did “nothing to stop Plascencia’s illegal conduct” which is “in deliberate 12 indifference toward [Plaintiff’s] safety.” (Id. at 24.) 13 Plaintiff seeks injunctive relief, compensatory damages of $50,000 against each 14 Defendant, and punitive damages of $50,000 against each Defendant. (See id. at 41.) 15 C. Individual Causation 16 As an initial matter, Plaintiff’s FAC fails to contain any factual allegations that 17 Defendants Covello, Juarez, or Anderson were ever actually aware of the claims Plaintiff 18 raises in this action. Instead, he alleges that they had “constructive notice” because he 19 wrote letters to them. In his FAC, Plaintiff appears to acknowledge that these letters 20 were sent back to him with the instruction to file them as administrative grievances and 21 thus, these letters were not actually delivered to these Defendants. 22 There is no respondeat superior liability under 42 U.S.C. § 1983 . Palmer v. 23 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Rather, “deliberate indifference is a 24 stringent standard of fault, requiring proof that a municipal actor disregarded a known or 25 obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (“A 26 less stringent standard of fault for a failure-to-train claim ‘would result in de facto 27 respondeat superior liability on municipalities . . . .’”), quoting City of Canton, Ohio v. 28 Harris, 489 U.S. 378, 392 (1989). 1 “The inquiry into causation must be individualized and focus on the duties and 2 responsibilities of each individual defendant whose acts or omissions are alleged to have 3 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), 4 citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg v. Kincheloe, 794 F.2d 457 , 5 460 (9th Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 6 1999) (“Causation is, of course, a required element of a § 1983 claim.”) A person 7 deprives another “of a constitutional right, within the meaning of section 1983, if he does 8 an affirmative act, participates in another’s affirmative acts, or omits to perform an act 9 which he is legally required to do that causes the deprivation of which [the plaintiff 10 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not 11 stated a claim against these Defendants because he has failed to allege facts regarding 12 what actions were taken or not taken by these Defendants which caused the alleged 13 constitutional violations. See Canton, 489 U.S. at 385 (“Respondeat superior and 14 vicarious liability will not attach under § 1983.”), citing Monell, 436 U.S. at 694-95. 15 Accordingly, the Court DISMISSES all claims against Defendants Covello, Juarez, 16 and Anderson for failing to state a claim upon which relief may be granted. 17 D. Failure to Protect 18 The Court construes Plaintiff’s request to reside in a single cell while housed 19 at RJD as a claim of failure to protect him from harm by other inmates arising under the 20 Eighth Amendment. Plaintiff claims that as a result he “lives every day not knowing and 21 wondering when and what is going to happen to [him].” (FAC at 13.) Plaintiff does not 22 allege any specific physical injury after he claims he notified Defendants of his concerns 23 while housed at RJD. 24 Prison officials have a duty under the Eighth Amendment to avoid excessive risks 25 to inmate safety. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994). To state a claim 26 under the Eighth Amendment, Plaintiff must allege Defendants were “deliberate[ly] 27 indifferen[t]” to “conditions posing a substantial risk of serious harm.” Id. Deliberate 28 indifference lies “somewhere between the poles of negligence at one end and purpose or 1 knowledge at the other.” Id. at 836 . 2 A prison official acts with deliberate indifference only if he “knows of and 3 disregards an excessive risk to inmate health and safety; the official must both be aware 4 of facts from which the inference could be drawn that a substantial risk of serious harm 5 exists, and he must also draw the inference.” Id. at 837 . 6 Plaintiff references past incidents of violence at the hands of other inmates but 7 these incidents are alleged to have occurred prior to his interactions with the named 8 Defendants in this action. (See FAC at 5-6.) Plaintiff does not identify any incident in 9 which he was subjected to physical injury while housed at RJD after allegedly notifying 10 the named Defendants of his concerns with being housed with another inmate. 11 The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of 12 a constitutional right, within the meaning of section 1983, if he does an affirmative act, 13 participates in another’s affirmative acts, or omits to perform an act which he is legally 14 required to do that causes the deprivation of which complaint is made.” Johnson, 588 15 F.2d at 743. Plaintiff must allege which Defendant purportedly knew of a serious risk to 16 Plaintiff’s safety and deliberately ignored that risk. Accordingly, the Court finds that 17 Plaintiff offers no factual allegations that Defendants knew or should have known that 18 other inmates posed a risk to Plaintiff. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 19 1986) (deliberate indifference requires showing of “more than a mere suspicion that an 20 attack will occur.”); Hernandez v. Schriro, 2011 WL 2910710 , at *6 (D. Ariz. July 20, 21 2011) (“[w]hile theoretical risk is always possible, Farmer requires more—‘conditions 22 posing a substantial risk of serious harm.’”) (citation omitted)). 23 Accordingly, the Court DISMISSES Plaintiff’s Eighth Amendment claims for 24 failing to state a claim upon which relief may be granted. 25 E. Due Process claims 26 Plaintiff also alleges that his due process rights were violated during his 27 disciplinary and classification hearings. The Fourteenth Amendment provides that “[n]o 28 state shall ... deprive any person of life, liberty, or property, without due process of law.” 1 U.S. Const. amend. XIV, § 1. “The requirements of procedural due process apply only to 2 the deprivation of interests encompassed by the Fourteenth Amendment’s protection of 3 liberty and property.” Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a 4 procedural due process claim, [a plaintiff] must allege ‘(1) a liberty or property interest 5 protected by the Constitution; (2) a deprivation of the interest by the government; [and] 6 (3) lack of process.’” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting 7 Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). 8 A prisoner is entitled to certain due process protections when he is charged with a 9 disciplinary violation. Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974)). “Such 10 protections include the rights to call witnesses, to present documentary evidence and to 11 have a written statement by the fact-finder as to the evidence relied upon and the reasons 12 for the disciplinary action taken.” Id. These procedural protections, however, “adhere 13 only when the disciplinary action implicates a protected liberty interest in some 14 ‘unexpected matter’ or imposes an ‘atypical and significant hardship on the inmate in 15 relation to the ordinary incidents of prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 16 472, 484 (1995)); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 17 Although the level of the hardship must be determined on a case-by-case basis, and 18 “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for 19 identifying the baseline from which to measure what is atypical and significant in any 20 particular prison system,” Wilkinson v. Austin, 545 U.S. 209, 223 (2005), courts in the 21 Ninth Circuit look to: 22 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus — 23 — comported with the prison’s discretionary authority; 2) the duration of the 24 condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. — 25 — 26 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87); see also Chappell 27 v. Mandeville, 706 F.3d 1052, 1064-65 (9th Cir. 2013). — 28 — 1 Only if the prisoner alleges facts sufficient to show a protected liberty interest must 2 courts next consider “whether plaintiff’s due process claims require sua sponte dismissal 3 pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) because he fails 4 to allege facts sufficient to show that the deprivations he suffered as a result of his 5 disciplinary conviction, i.e., lost privileges, see FAC at 8, 10, imposed the type of 6 “atypical and significant hardships” required by Sandin to invoke any liberty interest 7 entitled to Wolff’s procedural protections. 8 These lost privileges do not constitute “atypical and significant” hardships. See 9 Sandin, 515 U.S. at 484; see also Sanchez v. Miller, 2016 WL 536890 , at *5 (S.D. Cal. 10 2016) (Status “deprivations were limited in duration and type, and these limited 11 deprivations do not constitute a hardship that is atypical and significant ‘in relation to the 12 ordinary incidents of prison life.’”), report and recommendation adopted, 2016 WL 13 524438 (S.D. Cal. 2016); Randle v. Melendrez, 2017 WL 1197864 , at *4 (C.D. Cal. 14 2017) (finding “four months in administrative segregation as a result of the false RVR,” 15 during which plaintiff was deprived of contact visits, “packages, canteen, unrestricted 16 yard, phone calls and personal property” insufficient to implicate a protected liberty 17 interest under Sandin), report and recommendation adopted, 2017 WL 1199719 (C.D. 18 Cal. 2017 ). 19 Accordingly, the Court DISMISSES Plaintiff’s Fourteenth Amendment due 20 process claims for failing to state a claim upon which relief may be granted. 21 F. Retaliation claims 22 The Court finds Plaintiff’s FAC contains First Amendment retaliation allegations 23 against Canedo, Taylor-Garcia, Flores, Plascencia, and Carrillo sufficient to survive the 24 “low threshold” for proceeding past the sua sponte screening required by 28 U.S.C. 25 §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123 ; Rhodes v. Robinson, 408 26 F.3d 559, 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of First 27 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 28 some adverse action against an inmate (2) because of (3) that prisoner’s protected 1 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 2 rights, and (5) the action did not reasonably advance a legitimate correctional goal.”). 3 G. Leave to Amend 4 Because Plaintiff has already been provided a short and plain statement of his 5 pleading deficiencies as to his Eighth and Fourteenth Amendment due process claims, his 6 claims against Covello, Juarez, and Anderson, as well as an opportunity to amend those 7 claims to no avail, the Court finds granting further leave to amend as to these claims would 8 be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) 9 (“‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’”) (quoting 10 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc 11 Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been 12 granted leave to amend and has subsequently failed to add the requisite particularity to its 13 claims, [t]he district court’s discretion to deny leave to amend is particularly broad.” 14 (internal quotation marks omitted) (second alteration in original)). 15 III. Conclusion and Order 16 For the reasons discussed, the Court: 17 (1) DISMISSES all claims against Defendants Covello, Juarez, and Anderson 18 for failing to state a claim and without leave to amend pursuant to 28 U.S.C. 19 §§ 1915(e)(2) and 1915A(b); 20 (2) DISMISSES Plaintiff’s Eighth and Fourteenth Amendment claims for 21 failing to state a claim and without leave to amend pursuant to 28 U.S.C. §§ 1915 (e)(2) 22 and 1915A(b); 23 (3) DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 45) 24 and forward it to Plaintiff along with blank U.S. Marshal Form 285s for Defendants 25 Martinez, Canedo, Taylor-Garcia, Flores, Plascencia, and Carrillo. In addition, the Clerk 26 will provide Plaintiff with a certified copy of February 26, 2020 Order granting IFP 27 status, a certified copy of his FAC, and the summons so that he may serve these 28 Defendants. Upon receipt of this “IFP Package,” and in no case later than 15 days after 1 receipt, Plaintiff must complete the Form 285s as completely and accurately as possible, 2 include an address where each Defendant may be found and/or subject to service, and 3 return them to the United States Marshal according to the instructions the Clerk will 4 provide in the letter accompanying his IFP package. 5 (4) ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon 6 Defendants Martinez, Canedo, Taylor-Garcia, Flores, Plascencia, and Carrillo as directed 7 by Plaintiff on the USM Form 285s provided to him, and file executed waivers or proofs 8 of personal service upon each Defendant with the Clerk of Court within 30 days of their 9 return. Should any Defendant fail to return the U.S. Marshal’s request for waiver of 10 personal service within that time, the U.S. Marshal shall instead file the completed Form 11 USM 285 Process Receipt and Return with the Clerk of Court, include the date the 12 summons, complaint, and request for waiver was mailed to that Defendant, and note that 13 service upon that party remains unexecuted. All costs of U.S. Marshal service will be 14 advanced by the United States; however, if a Defendant located within the United States 15 fails, without good cause, to sign and return the waiver requested by the Marshal on 16 behalf of Plaintiff, the Court will impose upon the Defendant any expenses later incurred 17 in making service. See 28 U.S.C. § 1915 (d); Fed. R. Civ. P. 4(c)(3), (d)(2). 18 (5) ORDERS Defendants Martinez, Canedo, Taylor-Garcia, Flores, Plascencia, 19 and Carrillo, once served, to reply to Plaintiff’s FAC, and any subsequent pleading 20 Plaintiff may file in this matter in which they are named as parties, within the time 21 provided by the applicable provisions of Federal Rule of Civil Procedure 12(a) and 22 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted 23 to “waive the right to reply to any action brought by a prisoner confined in any jail, 24 prison, or other correctional facility under section 1983,” once the Court has conducted 25 its sua sponte screening pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b), and thus, has 26 made a preliminary determination based on the face on the pleading alone that Plaintiff 27 has a “reasonable opportunity to prevail on the merits,” defendant is required to respond). — 28 — l 6) ORDERS Plaintiff, after initial service has been effected by the U.S. 2 || Marshal, to serve upon Defendants Martinez, Canedo, Taylor-Garcia, Flores, Plascencia, 3 Carrillo, or if appearance has been entered by counsel, upon Defendants’ counsel, by 4 ||U.S. Mail, a copy of every further pleading, motion, or other document submitted for the 5 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 6 || original document he seeks to file with the Clerk of the Court, a certificate stating the 7 manner in which a true and correct copy of that document has been served on Defendants 8 || or their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. 9 IT IS SO ORDERED. — 10 — 11 Dated: November 8, 2022 VU Lik 12 foitees.. B3 // United States District Judge — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 13 □□ □□