Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES KINSEY, Case No.: 3:25-cv-1225-JES-DDL CDCR# P-04738, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING ALL CLAIMS 14 AGAINST DEFENDANTS HALL, CDCR 15 AND JOHN DOES 1-10 SUSAN PASHA, Nurse Practitioner, 16 Defendant. AND 17 (2) DIRECTING U.S. MARSHAL TO 18 EFFECT SERVICE OF SAC AND 19 SUMMONS UPON DEFENDANT PASHA PURSUANT TO 28 U.S.C. § 1915(d) & 20 Fed. R. Civ. P. 4(c)(3) 21 22 I. Background 23 On May 12, 2025, Plaintiff Charles Kinsey, currently incarcerated at Richard J. 24 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, 25 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 arising from events that 26 occurred during his confinement at RJD, naming as Defendants Nurse Pasha, ADA 27 Coordinator Hall, the California Department of Corrections and Rehabilitation (“CDCR”) 28 and John Does 1-10. ECF No. 1. After the Court dismissed the civil action on May 16, 1 2025, for failure to pay the required filing fee and/or properly move to proceed in forma 2 pauperis (“IFP”), Plaintiff filed a motion for leave to proceed IFP. ECF Nos. 4–5. On 3 September 23, 2025, the Court granted Plaintiff’s IFP motion, dismissed the Complaint 4 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failing to state a claim upon which 5 relief may be granted, and granted Plaintiff 45 days leave to amend. ECF No. 7. 6 On October 20, 2025, prior to filing any Amended Complaint, Plaintiff filed a 7 “Requested Order to Stop Retaliation,” ECF No. 9 at 1–2, which the Court liberally 8 construed as both a motion for preliminary injunctive relief and a motion to extend time in 9 which to amend and/or supplement his complaint, and on October 31, 2025, the Court 10 denied Plaintiff’s motion for preliminary injunctive relief without prejudice as moot, 11 granted him leave to amend and/or supplement pursuant to Fed. R. Civ. P. 15(a) and (d) 12 and further granted him a 45-day extension of time in which to file a comprehensive 13 Amended Complaint. ECF No. 10. On or about the same time, however, Plaintiff filed an 14 Amended Complaint. See ECF No. 12. Then, on November 19, 2025, Plaintiff filed a 15 Second Amended Complaint (“SAC”), see ECF No. 13, presumedly in response to the 16 Court’s interim October 31, 2025, Order, in which Plaintiff named as a Defendant Nurse 17 Pasha alone. 18 On February 5, 2026, the Court dismissed all claims against Defendant Pasha 19 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failing to state a claim upon which 20 relief may be granted except for the Eighth Amendment failure to protect claim against 21 Defendant Pasha, and specifically found that “Plaintiff plausibly states an Eighth 22 Amendment failure to protect claim against Defendant Pasha ‘sufficient to meet the low 23 threshold for proceeding past the screening stage.’” ECF No. 14 at 6, quoting Wilhelm v. 24 Rotman, 680 F.3d at 1113, 1123 (9th Cir. 2012). The Court granted Plaintiff 45 days to 25 either: (1) file a Third Amended Complaint correcting the deficiencies of pleading 26 identified in the Court’s screening order or (2) file a Notice of Intent to Proceed with his 27 Eighth Amendment failure to protect claim against Defendant Pasha only. Id. at 11. The 28 Court cautioned Plaintiff that if he chose to proceed only with the claim which survived 1 screening, the Court would authorize U.S. Marshal service upon Defendant Pasha, and that 2 “all remaining claims will remain dismissed from this action.” Id. at 10. 3 On February 12, 2026, Plaintiff filed a Notice of Intent to Proceed, stating: “The 4 plaintiff Charles Kinsey comes before the court and hereby elects per the courts order to 5 proceed on the failure to protect claim.” ECF No. 16 at 1. 6 II. Conclusion and Orders 7 Good cause appearing, the Court: 8 (1) DISMISSES all claims against Defendants Hall, CDCR and John Does 1-10 9 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) and DIRECTS the Clerk of Court to 10 terminate these Defendants as parties to this action. 11 (2) DIRECTS the Clerk to issue a summons as to Plaintiff’s Second Amended 12 Complaint, ECF No. 13, for Defendant Pasha and forward it to Plaintiff along with a blank 13 U.S. Marshal Form 285. The Clerk will provide Plaintiff with certified copies of the Second 14 Amended Complaint and summons for use in serving Defendant. Upon receipt of this “In 15 Forma Pauperis Package,” Plaintiff must complete the USM Form 285 as completely and 16 accurately as possible, include an address where Defendant may be found and/or subject 17 to service pursuant to S.D. Cal. CivLR 4.1(c), and return the forms to the United States 18 Marshal according to the instructions the Clerk provides in the letter accompanying the In 19 Forma Pauperis Package. 20 (3) ORDERS the U.S. Marshal to serve a copy of the Second Amended 21 Complaint and summons upon Defendant Pasha as directed by Plaintiff on the USM Form 22 285, and to file executed waivers of person service upon the Defendant with the Clerk of 23 Court as soon as possible after their return. Should Defendant fail to return the U.S. 24 Marshal’s requests for waiver of personal service within 90 days, the U.S. Marshal must 25 instead timely file the completed Form U.S. Marshal 285 Process Receipt and Returns with 26 the Clerk of Court, include the date the summons, Complaint, and requests for waiver were 27 mailed to Defendant, and indicate why service was not completed. All costs of service will 28 be advanced by the United States; however, if any Defendant located within the United 1 || States fails without good cause to sign and return the waivers requested by the Marshal on 2 || Plaintiff's behalf, the Court will impose upon that Defendant any expenses later incurred 3 ||in making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3) & (d)(2)(A). 4 (4) ORDERS Defendant, once served, to reply to Plaintiff's Second Amended 5 ||Complaint and any subsequent pleading Plaintiff files in this matter in which Defendant is 6 ||named as a party within the time provided by the applicable provisions of Federal Rules of 7 || Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while defendants may 8 || occasionally be permitted to “waive the right to reply to any action brought by a prisoner 9 ||confined in any jail, prison, or other correctional facility under section 1983,” once the 10 || Court has conducted its sua sponte screening defendants are required to respond). 1] (5) ORDERS Plaintiff, after service has been completed by the U.S. Marshal, to 12 ||serve upon Defendant, or if appearance has been entered by counsel, upon Defendant’s 13 |}counsel, a copy of every further pleading, motion, or other document submitted for the 14 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 15 original document sought to be filed with the Clerk, a certificate stating the manner in 16 || which a true and correct copy of that document has been served on Defendant or their 17 || counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by 18 Court which has not been properly filed with the Clerk or which fails to include a 19 || Certificate of Service upon Defendant, or their counsel, may be disregarded. 20 IT IS SO ORDERED. 21 9 Dated: February 27, 2026 “4 we Se 4, 23 Honorable James E. Sunmons Jr. United States District Judge 25 26 27 28 4 a □□