United States District Court, S.D. California
ORDER DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF
SUMMONS AND THIRD AMENDED COMPLAINT PURSUANT TO 28 U.S.C.
§ 1915(D) AND FED.R.CIV.P. 4(C)(3)
William Q. Hayes, United States District Court Judge.
March 21, 2017, Thomas Goolsby (“Plaintiff”), a
state inmate currently housed at Calipatria State Prison,
filed a Complaint pursuant to 42 U.S.C. § 1983 on March
31, 2017. (Doc. No. 1.) Plaintiff also requested leave to
proceed in forma pauperis (“IFP”) (Doc. No. 2).
Because Plaintiff's Motion to Proceed IFP complied with
28 U.S.C. § 1915(a)(2), the Court granted him leave to
proceed without full prepayment of the civil filing fees
required by 28 U.S.C. §1914(a) and dismissed some of the
claims in his Complaint for failing to state a claim pursuant
to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (Doc. No.
4.) The Court also dismissed claims in Plaintiff's
subsequent First and Second Amended Complaints but allowed
Plaintiff leave to file an amended pleading to correct the
deficiencies of pleading identified in the Court's Order.
(Doc. Nos. 11, 14.) On April 23, 2018, Plaintiff filed his
Third Amended Complaint (“TAC”). (Doc. No. 15.)
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Court informed Plaintiff in its previous Orders, because
Plaintiff is a prisoner and is proceeding IFP, his TAC
requires a pre-answer screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). Under these statutes, the
Court must sua sponte dismiss a prisoner's IFP complaint,
or any portion of it, which is frivolous, malicious, fails to
state a claim, or seeks damages from defendants who are
immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27
(9th Cir. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The purpose of [screening] is ‘to ensure that
the targets of frivolous or malicious suits need not bear the
expense of responding.'” Nordstrom v.
Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
factual allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Determining whether a
complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
U.S.C. § 1983
42 U.S.C. § 1983 provides a cause of action for the
“deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United
States. Wyatt v. Cole, 504 U.S. 158, 161 (1992). To
state a claim under § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person
acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988); Long v. Cty. of Los Angeles, 442
F.3d 1178, 1185 (9th Cir. 2006).
currently pleaded, the Court finds Plaintiff's TAC
contains “sufficient factual matter, accepted as true,
” to state claims for relief that are “plausible
on [their] face, ” Iqbal, 556 U.S. at 678, and
therefore, sufficient to survive the “low
threshold” for proceeding past the sua sponte screening
required by 28 U.S.C. §§ 1915(e)(2) and
1915A(b). See Wilhelm, 680 F.3d at 1123.
the Court will order the U.S. Marshal to effect service upon
Defendants on Plaintiff's behalf. See 28 U.S.C.
§ 1915(d) (“The officers of the court shall issue
and serve all process, and perform all duties in [IFP]
cases.”); Fed.R.Civ.P. 4(c)(3) (“[T]he court may
order that service be made by a United States marshal or
deputy marshal ... if the plaintiff is authorized to proceed
in forma pauperis under 28 U.S.C. § 1915.”).