Cortez v. Hart

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JASON CORTEZ, Case No. 22-cv-06023 EJD (PR)

7 Plaintiff, ORDER ON PLAINTIFF’S NOTICE; DISMISSING NON-COGNIZABLE 8 v. CLAIMS; OF SERVICE; DIRECTING DEFENDANTS TO 9 JIM HART, et al., FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH 10 Defendants. MOTION; INSTRUCTIONS TO CLERK 11 (Docket No. 13) 12 13 Plaintiff, a pretrial detainee, filed the instant pro se civil rights action pursuant to 42 14 U.S.C. § 1983 against officers at the Santa Cruz County Jail (“Jail”), where he is currently 15 confined. Dkt. No. 1. On March 27, 2023, the Court dismissed the complaint with leave 16 to amend, for Plaintiff to file an amended complaint to correct the deficiencies with respect 17 to several claims. Dkt. No. 12 at 6. In the alternative, Plaintiff could file a notice that he 18 wishes to pursue only the cognizable claim of excessive force against Defendants 19 Aisnworth and Seavers, and have all other claims and Defendants dismissed. Id. Plaintiff 20 filed notice that he chooses this alternative course of action. Dkt. No. 13. Accordingly, 21 this matter shall proceed solely on the excessive force claim. 22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 1 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 2 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 3 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 elements: (1) that a right secured by the Constitution or laws of the United States was 5 violated, and (2) that the alleged violation was committed by a person acting under the 6 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 7 B. Plaintiff’s Claims 8 As discussed in the Court’s Order of Dismissal with Leave to Amend, the complaint 9 states a cognizable claim of excessive force against Defendants Lt. Jacob Ainsworth and 10 Rachel Seavers. Dkt. No. 12 at 2-3; see Dkt. No. 1 at 3. All other claims shall be 11 dismissed and all other Defendants terminated from this action. 12 CONCLUSION 13 For the foregoing reasons, the Court orders as follows: 14 1. This action shall proceed solely on the excessive force claim against 15 Defendants Ainsworth and Seavers. All other claims are DISMISSED without prejudice. 16 The Clerk shall terminate all other Defendants from this action. 17 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 18 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 19 of the complaint, Dkt. No. 1, all attachments thereto, and a copy of this order upon 20 Defendants Lt. Jacob Ainsworth and Rachel Seavers at the Santa Cruz Main Jail (259 21 Water Street, Santa Cruz, CA 95060). The Clerk shall also mail a copy of this order to 22 Plaintiff. 23 3. No later than ninety-one (91) days from the date this order is filed, 24 Defendants shall file a motion for summary judgment or other dispositive motion with 25 respect to the claims in the amended complaint found to be cognizable above. 26 a. Any motion for summary judgment shall be supported by adequate 27 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 1 qualified immunity found, if material facts are in dispute. If any Defendant is of the 2 opinion that this case cannot be resolved by summary judgment, he shall so inform the 3 Court prior to the date the summary judgment motion is due. 4 b. In the event Defendants file a motion for summary judgment, the 5 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 6 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 7 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 8 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 9 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 10 motion is filed. 11 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 12 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 13 must come forward with evidence showing triable issues of material fact on every essential 14 element of his claim). Plaintiff is cautioned that failure to file an opposition to 15 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 16 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 17 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 18 F.3d 651, 653 (9th Cir. 1994). 19 5. Defendants shall file a reply brief no later than fourteen (14) days after 20 Plaintiff’s opposition is filed. 21 6. The motion shall be deemed submitted as of the date the reply brief is due. 22 No hearing will be held on the motion unless the Court so orders at a later date. 23 7. All communications by the Plaintiff with the Court must be served on 24 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 25 copy of the document to Defendants or Defendants’ counsel. 26 8. Discovery may be taken in accordance with the Federal Rules of Civil 27 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 1 9. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the 2 || court informed of any change of address and must comply with the court’s orders in a 3 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 4 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 5 10. Extensions of time must be filed no later than the deadline sought to be 6 || extended and must be accompanied by a showing of good cause. 7 IT ISSO ORDERED. g || Dated: April 18, 2023 aM. EDWARD J. DAVILA 9 United States District Judge 10 11 g

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