1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT D. ANDERSON, Case No. 20-cv-04368-HSG
8 Plaintiff, ORDER OF PARTIAL SERVICE; DISMISSING CERTAIN CLAIMS AND 9 v. DEFENDANTS WITH LEAVE TO AMEND; DISMISSING CERTAIN 10 CALIFORNIA DEPARTMENT OF CLAIMS AND DEFENDANTS WITH CORRECTION, et al., PREJUDICE; DENYING REQUEST 11 FOR APPOINTMENT OF COUNSEL Defendants. 12 Re: Dkt. No. 7
13 14 Plaintiff, an inmate at Correctional Training Facility (“CTF”), has filed a pro se action 15 pursuant to 42 U.S.C. § 1983. His complaint (Dkt. No. 1) is now before the Court for review 16 under 28 U.S.C. § 1915A. Plaintiff has paid the filing fee. Dkt. No. 1. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 25 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 3 plaintiff’s obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than 4 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . 5 . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 7 proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 570. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 9 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 10 the alleged violation was committed by a person acting under the color of state law. See West v. 11 Atkins, 487 U.S. 42, 48 (1988). 12 B. Complaint 13 Plaintiff has named as defendants the California Department of Corrections and 14 Rehabilitation (“CDCR”), Correctional Training Facility (“CTF”); CTF Warden Craig Koenig; 15 and the following CTF correctional officials: Associate Warden K. Hoffman; appeals examiner K. 16 Z. Allen; appeals coordinator R. Monroy; captain T. Selby; sergeant A. Kuster; sergeant Gregory; 17 sergeant M. McGallon; litigation coordinator E. Galvan; officer A. Hidalgo; food manager Tucker; 18 supervising cook Adams; G. Gash; supervising cook J. Ferguson; lieutenant C. Peaden; sergeant S. 19 Kelley; and mental health staff Miller. 20 According to the complaint, on August 26, 2019, defendant Ferguson sexually harassed 21 plaintiff by forcing plaintiff’s face into his groin and, when plaintiff went to speak to him about it 22 later, again pulling plaintiff’s face down to his groin. On August 28, 2019, plaintiff sought 23 medical treatment from defendant Miller for the trauma triggered by this event. Defendant Miller 24 reported the sexual harassment, which initiated a Prison Rape Elimination Act investigation. 25 Plaintiff filed a grievance and several Form 22s (request for services or information) regarding the 26 sexual harassment. The complaint alleges that the manner in which prison correctional officials 27 handled the PREA investigation, his request for medical treatment, his 602, and his Form 22s 1 process under the Fourteenth Amendment, and constituted state-law claims for negligence, 2 intentional tort, premises liability, assault and battery, and negligent failure to protect. Plaintiff 3 seeks punitive damages (referred to as exemplary damages), compensatory damages, declaratory 4 relief, and injunctive relief in the form of counseling and therapy for plaintiff. 5 The complaint identifies the following defendants as handling the PREA investigation: 6 defendants Kuster and Kelley. The complaint identifies the following defendants as handling the 7 grievance: defendants Koenig, Kelley, Hoffman, Kuster, and Allen. The complaint identifies the 8 following defendants as handling the Form 22s: defendant Galvan, Adams, and Gash. The 9 complaint identifies the following defendants as handling the staff complaint that arose out of the 10 grievance: defendant Monroy. The complaint does not explain how these defendants’ 11 involvement in handling the PREA investigation, plaintiff’s 602, and plaintiff’s Form 22s violated 12 his constitutional rights or stated the above state-law claims. 13 The complaint also makes the following additional allegations. Defendant Hidalgo failed 14 to forward plaintiff’s September 2, 2019 Form 22 to the appropriate correctional official, in 15 violation of prison regulations. In response to plaintiff’s initial reporting of the sexual assault, 16 defendant Miller failed to conduct an adequate psychological examination of plaintiff upon 17 learning of the assault. Specifically, defendant Miller failed to ask plaintiff “necessary questions;” 18 failed to question plaintiff about his childhood history of sexual abuse; failed to ensure that 19 plaintiff’s mental health “was within normal limits;” and failed to conduct tests to determine if 20 plaintiff was suffering from immediate psychological trauma. When plaintiff requested mental 21 health services in September 2019, he was seen again by defendant Miller and later by defendant 22 McGallon. Defendants McGallon and Kuster failed to ensure that plaintiff could receive meals 23 without running into defendant Ferguson, resulting in 23 days where plaintiff did not have “proper 24 nutritional meals.” The assault left plaintiff in extreme distress, in a non-coherent state, terror- 25 stricken, and panicked. As a result of this emotional state, plaintiff fought with another inmate on 26 November 12, 2019, and received a rules violation report. On March 22, 2020, defendant 27 Ferguson again sexually assaulted plaintiff, this time by rubbing up against plaintiff. 1 The complaint states a cognizable Eighth Amendment claim and a cognizable state law 2 claim for sexual assault and battery against defendant Ferguson for his sexual assault on plaintiff 3 on August 26, 2019. “A prisoner presents a viable Eighth Amendment claim where he or she 4 proves that a prison staff member, acting under color of law and without legitimate penological 5 justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for 6 the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or 7 demeaning the prisoner.” Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). 8 The remaining claims and defendants are either dismissed with leave to amend or with 9 prejudice as explained below. 10 1. Dismissal with Leave to Amend 11 The following claims and defendants are dismissed with leave to amend. 12 a) Defendants Koenig and Hoffman 13 The complaint alleges that defendants Koenig and Hoffman’s actions constituted cruel and 14 unusual punishment in violation of the Eighth Amendment, denied him due process under the 15 Fourteenth Amendment, and constituted negligence, premises liability, assault and battery, and 16 negligent failure to protect. Such allegations fail to state a cognizable Section 1983 claim because 17 the claims seek to hold defendants Koenig and Hoffman liable based on their supervisory 18 positions and based on conclusory allegations that they failed to properly investigate the August 19 26, 2019 incident. To state a claim for relief under Section 1983 against a supervisor defendant, 20 plaintiff must allege some facts that would support a claim that (1) the supervisor defendant 21 proximately caused the deprivation of rights of which plaintiff complains, see Harris v. City of 22 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981); (2) the supervisor defendant failed to properly 23 train or supervise personnel resulting in the alleged deprivation, Ybarra v. Reno Thunderbird 24 Mobile Home Village, 723 F.2d 675, 680 (9th Cir. 1984); (3) the alleged deprivation resulted from 25 custom or policy for which the supervisor defendant was responsible, see id.; or (4) the supervisor 26 defendant knew of the alleged misconduct and failed to act to prevent future misconduct, Taylor v. 27 List, 880 F.2d 1040, 1045 (9th Cir. 1989). Vague and conclusory allegations concerning the 1 followed or not followed, are not sufficient to state a claim. Cf. Ivey v. Board of Regents, 673 F.2d 2 266, 268 (9th Cir. 1982). Because it appears possible that plaintiff may be able to correct this 3 deficiency, the Court will dismiss defendants Koenig and Hoffman from this action with leave to 4 amend the claims against them, if plaintiff can truthfully do so. See Lopez v. Smith, 203 F.3d 5 1122, 1130 (9th Cir. 2000); see also Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).1 6 b) Defendants Selby, Gregory, Tucker, and Peaden 7 Defendants Selby, Gregory, Tucker and Peaden are DISMISSED from this action with 8 leave to amend. The complaint makes no specific allegations against these defendants. These 9 defendants are not linked to specific acts or inactions. The general allegations that these 10 defendants acted wantonly, maliciously, and willfully; that they “conspire[d] to obfuscate 11 malfeasance deliberate failure to properly investigate alleged sexual assault, lacked penological 12 and/or security justification to treat plaintiff in the manner as described;” that they endangered 13 plaintiff, fellow employees and other inmates; and that they violated departmental regulations, see, 14 e.g., Dkt. No. 1 at 27-28, fail to state cognizable claims for relief. See Ashcroft v. Iqbal, 556 U.S. 15 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.”). If plaintiff chooses to file an amended complaint again 17 names these defendants, plaintiff must identify what each of these defendants did or did not do 18 that directly deprived him of his constitutional rights. Ramirez, 334 F.3d at 861 (“Leave to amend 19 should be granted unless the pleading could not possibly be cured by the allegation of other facts, 20 and should be granted more liberally to pro se plaintiffs.”) (citation and internal quotation marks 21 omitted). 22 c) Eighth Amendment Failure-to-Protect Claim 23 The Eighth Amendment claim that defendants failed to protect plaintiff from sexual assault 24 by defendant Ferguson is DISMISSED with leave to amend. The Eighth Amendment requires that 25 prison officials take reasonable measures to guarantee the safety of prisoners. Farmer v. Brennan, 26
27 1 As discussed below, defendants Koenig and Hoffman are not liable with respect to how they 1 511 U.S. 825, 832 (1994). An Eighth Amendment failure-to-protect claim has two elements: 2 (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 3 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A 4 prison official is deliberately indifferent if he knows of and disregards an excessive risk to inmate 5 health or safety by failing to take reasonable steps to abate it. Id. at 837. Neither negligence nor 6 gross negligence will constitute deliberate indifference. Id. at 825, 835-36 & n.4 (1994). The 7 official must both be aware of facts from which the inference could be drawn that a substantial 8 risk of serious harm exists, and he must also draw the inference. See id. at 837. 9 The complaint’s vague and conclusory allegations are insufficient to state a failure-to- 10 protect claim. Plaintiff has made no factual allegations from which it can be reasonably inferred 11 that defendants were aware that defendant Ferguson would sexually assault plaintiff. The factual 12 allegations set forth in the complaint concern actions taken by defendants after the August 26, 13 2019 assault. Because it appears that plaintiff may be able to cure this deficiency, the Eighth 14 Amendment failure-to-protect claim is DISMISSED with leave to amend. If plaintiff chooses to 15 file an amended complaint alleging an Eighth Amendment failure-to-protect claim, plaintiff must 16 identify what each defendant did or did not do that meets the elements of an Eighth Amendment 17 failure-to-protect claim; and must make factual allegations from which it can be reasonably 18 inferred that each defendant knew of and disregarded an excessive risk to plaintiff’s safety. 19 Plaintiff should not refer to the defendants as a group, but should link each defendant personally to 20 a constitutional violation. 21 d) Due Process Claim 22 The due process claim is DISMISSED with leave to amend. Plaintiff has not identified 23 how his due process rights were violated. See, e.g., Dkt. No. 1 at 31-32. The recitation of the 24 elements of a cause of action is insufficient to state a cognizable claim for Section 1983 relief and, 25 as explained in the section below, the failure to follow state or prison regulations does not, 26 generally speaking, result in a due process violation. 27 To allege a due process claim, plaintiff must allege the deprivation of a protected interest 1 interest may arise under the Due Process Clause itself or under a state statute or regulation. Id. at 2 221-22. The Due Process Clause of the Fourteenth Amendment confers both procedural and 3 substantive rights. See Armendariz v. Penman, 75 F.3d 1311, 1318 (9th Cir. 1996) (en banc). 4 Substantive due process refers to certain actions that the government may not engage in, no matter 5 how many procedural safeguards it employs. See County of Sacramento v. Lewis, 523 U.S. 833, 6 847 (1998). Procedural due process refers to what process is due before a protected liberty interest 7 may be taken away. See Wilkinson, 545 U.S. at 224-25. 8 e) Negligence 9 Under California law, “[t]he elements of a cause of action for negligence are . . . (a) a legal 10 duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal 11 cause of the resulting injury.” Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (Cal. 1996). As 12 noted above, the factual allegations set forth in the complaint concern actions taken by defendants 13 after defendant Ferguson’s alleged August 26, 2019 assault, and these actions did not cause the 14 assault. Because it appears that plaintiff may be able to cure this deficiency, the negligence claim 15 is DISMISSED with leave to amend. 16 f) Deprivation of Nutritionally Balanced Meals 17 Plaintiff’s allegation that he went for 23 days without fully balanced meals because 18 defendant Ferguson was not removed from the area where plaintiff received meals fails to state a 19 cognizable Eighth Amendment claim. The Eighth Amendment imposes duties on correctional 20 officials, who must provide all prisoners with the basic necessities of life such as food, clothing, 21 shelter, sanitation, medical care and personal safety. See Farmer, 511 U.S. at 832. As in an 22 Eighth Amendment failure-to-protect claim, two requirements must be met: (1) the deprivation 23 alleged must be, objectively, sufficiently serious, Farmer, 511 U.S. at 834, and (2) the prison 24 official possesses a sufficiently culpable state of mind, id. Here, defendants cannot be held liable 25 under the Eighth Amendment for plaintiff going without fully balanced nutritional meals unless 26 each defendant was aware of facts from which the inference could be drawn that plaintiff was at 27 substantial risk of serious harm when he was forced to obtain his meals from an area where 1 Ferguson’s presence in the kitchen area prevented plaintiff from safely receiving his meals, and 2 how this resulted in meals that were not nutritionally balanced. Because it appears that plaintiff 3 may be able to cure this deficiency, this claim is DISMISSED with leave to amend. If plaintiff 4 chooses to file an amended complaint regarding the denial of nutritionally balanced meals, 5 plaintiff must identify what each defendant did or did not do that meets the elements of an Eighth 6 Amendment claim. 7 2. Dismissal with Prejudice 8 The following claims are dismissed with prejudice. 9 a) CDCR and CTF 10 Defendants CDCR and CTF are DISMISSED from this action with prejudice because the 11 Eleventh Amendment bars suits against a state and its agencies. See Pennhurst State Sch. & Hosp. 12 v. Halderman, 465 U.S. 89, 100 (1984) (“It is clear . . . that in the absence of consent a suit in 13 which the State or one of its agencies or departments is named as the defendant is proscribed by 14 the Eleventh Amendment.”); Allison v. Cal. Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) 15 (California Adult Authority and San Quentin State Prison not persons within meaning of Civil 16 Rights Act). b) Defendants Kuster, Kelley, Allen, Galvan, Adams, Gash, Monroy, 17 Koenig, and Hoffman 18 Defendants Kuster, Kelley, Allen, Galvan, Adams, Gash, and Monroy are DISMISSED 19 from this action with prejudice. Their only involvement with respect to Ferguson’s alleged sexual 20 harassment is their roles in processing the grievance/staff complaint, the PREA investigation, 21 and/or the Form 22s. A prisoner has no constitutional right to an effective grievance or appeal 22 procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner has no 23 constitutional right to effective grievance or appeal procedure); Mann v. Adams, 855 F.2d 639, 640 24 (9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance procedure.”). 25 Therefore, a prison official’s denial of an inmate’s grievance generally does not constitute 26 significant participation in an alleged constitutional violation sufficient to give rise to personal 27 liability under Section 1983. See, e.g., Wilson v. Woodford, No. 1:05–cv–00560–OWW–SMS, 1 complaint does not cause or contribute to constitutional violation). Similarly, the failure to follow 2 prison regulations when handling a grievance, staff complaint, Form 22, or PREA investigation 3 also does not state a cognizable Section 1983 claim. Accordingly, the claims against defendants 4 Kuster, Kelley, Allen, Galvan, Adams, Gash, and Monroy are DISMISSED with prejudice 5 because amendment would be futile, and defendants Kuster, Kelley, Allen, Galvan, Adams, Gash, 6 and Monroy are DISMISSED from this action. Ramirez, 334 F.3d at 861 (“Leave to amend 7 should be granted unless the pleading could not possibly be cured by the allegation of other facts, 8 and should be granted more liberally to pro se plaintiffs.”) (citation and internal quotation marks 9 omitted). 10 Defendants Koenig and Hoffman are also not liable with respect to how they handled 11 plaintiff’s grievance. Any claims against defendants Koenig and Hoffman arising out of their 12 responses to his grievance are DISMISSED with prejudice. 13 c) Failure to Follow State or Prison Regulations 14 The complaint’s claims that defendants failed to follow state or prison regulations fails to 15 state a cognizable § 1983 claim and are DISMISSED with prejudice. State regulations that merely 16 provide procedural requirements, even if mandatory, cannot form the basis of a constitutionally 17 cognizable liberty interest. See Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); see also 18 Antonelli, 81 F.3d at 1430 (holding prison grievance procedure is procedural right that does not 19 give rise to protected liberty interest requiring procedural protections of Due Process Clause). 20 Accordingly, the claim against defendant Hidalgo for failing to forward plaintiff’s mail or 21 complaint in accordance with prison regulations is DISMISSED with prejudice. Because there are 22 no other claims against defendant Hidalgo, defendant Hidalgo is DISMISSED from this action. 23 d) Premises Liability 24 The complaint fails to state a premises liability claim. A premises liability claim seeks 25 relief for harm caused by negligent use or maintenance of a property. Carter v. Nat’l R.R. 26 Passenger Corp., 63 F.Supp.3d 1118, 1144 (N.D. Cal. 2014) (to state a premises liability claim, 27 the plaintiff must allege ‘that the defendant owned or controlled the property, that the defendant 1 defendant’s negligence was a substantial factor in causing the harm”). Plaintiff is seeking relief 2 for harm caused by defendant Ferguson’s actions, and seeking to hold defendant Ferguson’s 3 supervisors and employers liable for this harm. The premises liability claim is DISMISSED 4 without leave to amend. 5 D. Motion for Appointment of Counsel 6 Plaintiff has requested appointment of counsel on the following grounds: he is unable to 7 afford counsel; the issues and facts involved are complex; plaintiff has limited access to the law 8 library due to COVID-19; plaintiff has unsuccessfully attempted to engage pro bono counsel; 9 plaintiff has a limited knowledge of the law and no legal education; the case involves mental 10 health issues that may require expert testimony; the case will require document discovery and 11 depositions of numerous witnesses; there is likely to be conflicting testimony; and plaintiff’s 12 claims, if proven, would establish a constitutional violation. Dkt. No. 7. 13 There is no constitutional right to counsel in a civil case unless an indigent litigant may 14 lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Serv., 452 U.S. 15 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to 16 counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952 17 (9th Cir. 1998) (en banc). The decision to request counsel to represent an indigent litigant under 18 § 1915 is within “the sound discretion of the trial court and is granted only in exceptional 19 circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the 20 “exceptional circumstances” of the plaintiff seeking assistance requires an evaluation of the 21 likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to 22 articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman v. 23 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525; 24 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 25 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on 26 a request for counsel under § 1915. See id. 27 Plaintiff has thus far ably articulated his claims pro se and the issues presented are not 1 exceptional circumstances without prejudice to the Court’s sua sponte appointment of counsel 2 should circumstances so require. Dkt. No. 7. 3 CONCLUSION 4 For the foregoing reasons, the Court orders as follows. 5 1. Liberally construed, the complaint states a cognizable Eighth Amendment claim 6 and a cognizable state law claim for sexual assault and battery against defendant Ferguson for his 7 alleged sexual assault on plaintiff on August 26, 2019. 8 2. Defendants Koenig, Hoffman, Selby, Gregory, Tucker and Peaden are 9 DISMISSED from this action with leave to amend the claims against them. The following claims 10 are DISMISSED with leave to amend: the Eighth Amendment failure-to-protect claim; the due 11 process claim; the negligence claim; and the claim that plaintiff was deprived of nutritionally 12 balanced meals. 13 3. Defendants CDCR, CTF, Kuster, Kelley, Allen, Galvan, Adams, Gash, Monroy, 14 and Hidalgo are DISMISSED from this action with prejudice. The following claims are 15 DISMISSED with prejudice: premises liability; any claims arising out of the handling of 16 grievance, the Form 22, and the PREA investigation; and any claims alleging a failure to follow 17 state regulations. 18 4. Plaintiff’s request for appointment of counsel is DENIED. Dkt. No. 7. 19 5. If plaintiff wishes to file an amended complaint, he shall do so within twenty-eight 20 (28) days of the date of this order. The amended complaint must include the caption and civil 21 case number used in this order, Case No. C 20-04368 HSG (PR) and the words “AMENDED 22 COMPLAINT” on the first page. If using the court form complaint, plaintiff must answer all the 23 questions on the form in order for the action to proceed. Because an amended complaint 24 completely replaces the previous complaints, plaintiff must include in his amended complaint all 25 the claims he wishes to present, including the claims already found cognizable above, and all of 26 the defendants he wishes to sue, including the defendants ordered serve below. See Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). The amended complaint must be complete in itself 1 previous complaints. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may 2 not incorporate material from the prior complaint by reference. Failure to file an amended 3 complaint in accordance with this order in the time provided will result in the complaint docketed 4 at Dkt. No. 1 remaining the operative complaint and the dismissal of defendants Broomfield and 5 Davis. 6 6. The Clerk shall issue summons and the United States Marshal shall serve, without 7 prepayment of fees, a copy of the complaint (Dkt. No. 1), with all attachments thereto, and a copy 8 of this order upon defendant J. Ferguson at Correctional Training Facility, at Soledad Prison 9 Road, Soledad CA 93960. A courtesy copy of the complaint with attachments and this order 10 shall also be mailed to the California Attorney General’s Office. 11 7. In order to expedite the resolution of this case, the Court orders as follows: 12 a. No later than 91 days from the date this order is filed, defendant must file 13 and serve a motion for summary judgment or other dispositive motion. If defendant is of the 14 opinion that this case cannot be resolved by summary judgment, defendant must so inform the 15 Court prior to the date the motion is due. A motion for summary judgment also must be 16 accompanied by a Rand notice so that plaintiff will have fair, timely, and adequate notice of what 17 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 18 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 19 served concurrently with motion for summary judgment).2 20 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 21 must be filed with the Court and served upon defendant no later than 28 days from the date the 22 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 23 provided later in this order as he prepares his opposition to any motion for summary judgment. 24 25 2 If defendant asserts that plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), defendant must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) 27 (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that 1 c. Defendant shall file a reply brief no later than 14 days after the date the 2 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 3 hearing will be held on the motion. 4 8. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 5 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 6 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 7 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 8 any fact that would affect the result of your case, the party who asked for summary judgment is 9 entitled to judgment as a matter of law, which will end your case. When a party you are suing 10 makes a motion for summary judgment that is properly supported by declarations (or other sworn 11 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 12 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 13 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 14 documents and show that there is a genuine issue of material fact for trial. If you do not submit 15 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 16 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 17 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 18 not excuse defendant’s obligation to serve said notice again concurrently with a motion for 19 summary judgment. Woods, 684 F.3d at 939). 20 9. All communications by plaintiff with the Court must be served on defendant’s 21 counsel by mailing a true copy of the document to defendant’s counsel. The Court may disregard 22 any document which a party files but fails to send a copy of to his opponent. Until defendant’s 23 counsel has been designated, plaintiff may mail a true copy of the document directly to defendant, 24 but once defendant is represented by counsel, all documents must be mailed to counsel rather than 25 directly to defendant. 26 10. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 27 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 1 11. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 2 || Court informed of any change of address and must comply with the Court’s orders in a timely 3 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 4 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 5 pending case every time he is moved to a new facility. 6 12. Any motion for an extension of time must be filed no later than the deadline sought 7 to be extended and must be accompanied by a showing of good cause. 8 13. Plaintiff is cautioned that he must include the case name and case number for this 9 case on any document he submits to the Court for consideration in this case. 10 IT IS SO ORDERED. 11 Dated: 9/28/2020 1 Agepurred 3 She) HAYWOOD S. GILLIAM, JR. 13 United States District Judge
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