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Perry Talley, Cdcr #D-91162 v. George Neotti; S. Pauley; Ratherfur; J.

September 6, 2011

PERRY TALLEY, CDCR #D-91162, PLAINTIFF,
v.
GEORGE NEOTTI; S. PAULEY; RATHERFUR; J. WALKER; SPENCER;
JOHN DOE NURSE; JOHN DOE PHYSICIAN DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge

ORDER DIRECTING U.S. MARSHAL TO EFFECT SERVICE COMPLAINT PURSUANT OF SECOND AMENDED TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d)

I.

PROCEDURAL HISTORY

On February 23, 2010, Plaintiff, Perry Talley, a state prisoner currently incarcerated at Kern Valley State Prison located in Delano, California and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleged that his Eighth Amendment rights were violated when he was housed at the Richard J. Donovan Correctional Facility ("Donovan"). Plaintiff also filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). The Court has granted Plaintiff's Motion to Proceed IFP but has also sua sponte dismissed his original and First Amended Complaint for failing to state a claim. See May 3, 2010 Order; see also August 3, 2010 Order.

On June 27, 2011, after receiving an extension of time. Plaintiff has now filed his Second Amended Complaint.

II.

SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A

A. Standard

The PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

The Court finds that Plaintiff's claims are now sufficiently pleaded to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is entitled to U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). Plaintiff is cautioned, however, that "the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring." Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).

III.

CONCLUSION AND ORDER

Good cause appearing therefor, IT IS HEREBY ORDERED that:

1. The Clerk shall issue a summons as to Plaintiff's Second Amended Complaint [ECF No.13] upon Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order, the Court's May 3, 2010 Order granting Plaintiff leave to proceed IFP [ECF No.4], and certified copies of his Second Amended Complaint and the summons for purposes of serving each Defendant. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to return them to the United States Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP package. Thereafter, the U.S. Marshal shall serve a copy of the Second ...


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