Richard v. Galbraith

          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 ...