Kinsey v. Pasha et al

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