Filed: Jul. 03, 2017
Latest Update: Jul. 03, 2017
Summary: ORDER DIRECTING DEFENDANTS HASSELBLAD AND STRAYHORN TO FILE A RESPONSE AS TO PLAINTIFF'S SECOND AMENDED COMPLAINT [ECF No. 31] BARRY TED MOSKOWITZ , Chief District Judge . Frayno Crumb ("Plaintiff") is currently incarcerated at Richard J. Donovan Correctional Facility ("RJDCF"), and is proceeding pro se and in forma pauperis in this case filed pursuant to 42 U.S.C. 1983. On May 22, 2017, the Court granted Plaintiff leave to file a Second Amended Complaint ("SAC") "alleging Eighth Amendm
Summary: ORDER DIRECTING DEFENDANTS HASSELBLAD AND STRAYHORN TO FILE A RESPONSE AS TO PLAINTIFF'S SECOND AMENDED COMPLAINT [ECF No. 31] BARRY TED MOSKOWITZ , Chief District Judge . Frayno Crumb ("Plaintiff") is currently incarcerated at Richard J. Donovan Correctional Facility ("RJDCF"), and is proceeding pro se and in forma pauperis in this case filed pursuant to 42 U.S.C. 1983. On May 22, 2017, the Court granted Plaintiff leave to file a Second Amended Complaint ("SAC") "alleging Eighth Amendme..
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ORDER DIRECTING DEFENDANTS HASSELBLAD AND STRAYHORN TO FILE A RESPONSE AS TO PLAINTIFF'S SECOND AMENDED COMPLAINT
[ECF No. 31]
BARRY TED MOSKOWITZ, Chief District Judge.
Frayno Crumb ("Plaintiff") is currently incarcerated at Richard J. Donovan Correctional Facility ("RJDCF"), and is proceeding pro se and in forma pauperis in this case filed pursuant to 42 U.S.C. § 1983.
On May 22, 2017, the Court granted Plaintiff leave to file a Second Amended Complaint ("SAC") "alleging Eighth Amendment excessive force claims arising on January 27, 2015, at RJDCF against Defendants D. Strayhorn and M. Hasselblad only, and to serve it upon their counsel of record, no later than Monday, July 10, 2017." (ECF No. 27 at 6.)1
On June 23, 2017, Plaintiff filed his SAC by mailing it to the Clerk of the Court (ECF No. 31); but he did not attach a proof of service by mail upon Defendants' counsel of record. See FED. R. CIV. P. 5(a)(1), (d). The Clerk of Court nevertheless issued Defendant Strayhorn and Hasselblad's counsel a Notice of Electronic Filing ("NEF") as to Plaintiff's SAC, on the same day—June 23, 2017. See S.D. CAL. CIVLR 5.4.c, d; ECF No. 31 (https://ecf.casd.circ9.dcn/cgi-bin/DisplayReceipt.pl?114159199404839-L_1_0-1).
Plaintiff's SAC contains the same excessive force allegations against Defendants Strayhorn and Hasselblad as his original Complaint, and the Court has already found them sufficient to state a plausible claim for relief under the Eighth Amendment. See ECF No. 8 at 5 (citing 28 U.S.C. § 1915(e)(2), § 1915A(b)(1); Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (noting that when prison officials stand accused of using excessive force, the core judicial inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.")).
While Defendants may occasionally be permitted to "waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983," 42 U.S.C. § 1997e(g)(2), once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that Plaintiff has a "reasonable opportunity to prevail on the merits," Defendants properly served with summons and the original complaint pursuant to FED. R. CIV. P. 4 are required to respond. See ECF Nos. 11, 12 (waivers of service returned executed on behalf of Defendants Hasselblad and Strayhorn by U.S. Marshal on January 31, 2017).
Conclusion and Order
Accordingly, Defendants Hasselblad and Strayhorn are hereby Ordered to file a response to Plaintiff's SAC (ECF No. 31), and to serve that response upon Plaintiff no later than Friday, July 28, 2017.2
IT IS SO ORDERED.
