United States District Court, S.D. California
ORDER: (1) GRANTING MOTION “REQUESTING THE
CANCELLATION OF SECOND AMENDED COMPLAINT”; (2)
DIRECTING CLERK OF COURT TO FILE PROPOSED THIRD AMENDED
COMPLAINT; AND (3) GRANTING MOTION FOR USMS SERVICE AND
DIRECTING USMS TO EFFECT SERVICE OF THIRD AMENDED
COMPLAINT
Hon.
Larry Alan Burns, Chief Judge United States District Court
I.
Procedural History
On June
13, 2019, Craig Richard (“Plaintiff”), currently
incarcerated at the California Health Care Facility
(“CHCF”) located in Stockton, California, and
proceeding pro se, filed a civil rights complaint pursuant to
42 U.S.C. § 1983 (ECF No. 1). While Plaintiff was housed
at CHCF at the time he filed this action, the named
Defendants are prison officials at the Richard J. Donovan
Correctional Facility (“RJD”). (See
Compl. at 1-2.) In addition, he filed a Motion to Proceed
In Forma Pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (ECF No. 3).
On July
8, 2019, the Court denied Plaintiff's Motion to Proceed
IFP and dismissed his Complaint for failing to state a claim
pursuant to 28 U.S.C. § 1915A. (ECF No. 4.) Plaintiff
was granted thirty (30) days leave to pay the entire initial
civil filing fee, along with filing an amended complaint.
(Id.)
On
August 20, 2019, Plaintiff filed a “Motion Requesting
Filing Fee Readjustment and/or Reconsideration of IFP
status.” (ECF No. 10.) However, Plaintiff then filed a
“Motion Requesting the Court to withdraw
Plaintiff's previous request to readjust Plaintiff's
Filing Fee Order and/or Reconsider Plaintiff's IFP
status.” (ECF No. 12.) Plaintiff also filed a First
Amended Complaint (“FAC”), along with a Motion to
Appoint Counsel. (ECF Nos. 13, .)
The
Court granted Plaintiff's motion to withdraw the motion
for reconsideration but dismissed the action based on
Plaintiff's failure to pay the initial partial filing fee
in the time previously determined by the Court. (ECF No. 17.)
A judgment was entered as to the entire action in favor of
all the named Defendants. (ECF No. 18.)
On
December 3, 2019, Plaintiff filed a “Motion requesting
the Court to withdraw the Order dismissing Plaintiff's
civil action” which the Court liberally construed as a
motion for reconsideration of the Court's November 18,
2019 Order. (ECF No. 20.) In addition, Plaintiff also filed a
letter to the Court on December 17, 2019 to provide
documentation in support of his Motion. (ECF No. 22.)
On
December 19, 2019, the Court granted Plaintiff's Motion
for Reconsideration, vacated the November 18, 2019 Order and
dismissed his FAC for failing to state a claim upon which
relief could be granted. (ECF No. 24.)
On
December 23, 2019, Plaintiff filed his Second Amended
Complaint (“SAC”). (ECF No. 25.) However, on
December 31, 2019, Plaintiff filed a Motion seeking to
withdraw his SAC and instead filed a proposed Third Amended
Complaint (“TAC”). (ECF No. 27.) Plaintiff's
Motion is GRANTED and the Court will direct the Clerk of
Court to file Plaintiff's proposed amended pleading,
see ECF No. 27 at 6-26, as his TAC.
II.
Screening of Complaint pursuant to 28 U.S.C. §
1915A
As the
Court previously informed Plaintiff, the Court is required to
conduct a sua sponte review of Plaintiff's TAC because he
was “incarcerated or detained in any facility [and] is
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” at the time he filed this action. See
28 U.S.C. § 1915A(a), (c).
Section
1915A, also enacted as part of PLRA, requires sua sponte
dismissal of prisoner complaints, or any portions thereof,
which are frivolous, malicious, or fail to state a claim upon
which relief may be granted. 28 U.S.C. § 1915A(b);
Coleman v. Tollefson, 135 S.Ct. 1759, 1764 (2015);
Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir.
2000). “The purpose of § 1915A 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) (citations
omitted.)
As
currently pleaded, the Court finds Plaintiff's TAC
contains “sufficient factual matter, accepted as true,
” to state Eighth Amendment claims for relief that are
“plausible on its face, ” Iqbal, 556
U.S. at 678, and therefore, sufficient to survive the
“low threshold” set for sua sponte screening
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
See Wilhelm, 680 F.3d at 1123; Iqbal, 556
U.S. at 678; Estelle v. Gamble, 429 U.S. 97, 104
(1976) (prison officials' deliberate indifference to an
inmate's serious medical needs constitutes cruel and
unusual punishment in violation of the Eighth
Amendment).[1]
III.
Plaintiff's Motion for Court-Ordered Marshal ...