Davall v. Cordero

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, Case No.: 3:20-cv-1968 JLS (KSC) CDCR #AW-8294, 12 ORDER (1) GRANTING IN PART Plaintiff, 13 AND DENYING IN PART vs. DEFENDANT WHITMAN’S 14 MOTION TO DISMISS; AND (2) A. CORDERO, Correctional Officer; 15 DIRECTING ATTORNEY WHITMAN, Associate Warden, GENERAL’S OFFICE TO PROVIDE 16 Defendants. CONFIDENTIAL ADDRESS OF 17 DEFENDANT CORDERO

18 (ECF No. 22) 19 20 21 Presently before the Court is Defendant Whitman’s (“Defendant” or “Whitman”) 22 Motion to Dismiss Plaintiff’s Complaint (“Mot.,” ECF No. 22). Plaintiff Joseph Davall 23 filed an Opposition to Defendant’s Motion (“Opp’n,” ECF No. 29), and Defendant filed a 24 Reply in support of her Motion (“Reply,” ECF No. 32). The Court took the matter under 25 submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 26 26. Having carefully considered Plaintiff’s Complaint and the Parties’ briefs, the Court 27 GRANTS IN PART and DENIES IN PART Defendant’s motion to dismiss pursuant to 28 Fed. R. Civ. P. 12(b)(6). 1 BACKGROUND 2 I. Plaintiff’s Allegations1 3 Plaintiff, currently incarcerated at Calipatria State Prison (“CAL”) located in 4 Calipatria, California, is proceeding pro se and in forma pauperis (“IFP”) in this civil rights 5 action pursuant to 42 U.S.C. § 1983. On October 5, 2020, Plaintiff filed his Complaint. 6 (See “Compl.,” ECF No. 1.) Plaintiff alleges that in July of 2019, Plaintiff met with 7 Defendant Cordero,2 a correctional counselor, regarding “transfer to a Level 3 facility.” 8 (Id. at 3.) Plaintiff informed Cordero that he “needed a single cell” because his cellmate 9 was asking him for “paperwork to prove” that Plaintiff is not a sex offender. (Id.) Plaintiff 10 informed Cordero that there were gang members housed in his yard and he would be 11 assaulted by any potential cellmate if they found out he was a sex offender. (See id.) 12 However, Cordero told Plaintiff that he would not be housed in a single cell, and he would 13 have to “do something really bad to get a single cell.” (Id.) 14 Later in July, Plaintiff “again approached Counselor Cordero” and informed him that 15 his cellmate was “becoming more aggressive and demanding paperwork.” (Id.) Plaintiff 16 again requested a single cell, but Cordero denied his request. (See id.) On July 28, 2019, 17 Plaintiff’s cellmate attacked him, which resulted in Plaintiff breaking two of his fingers 18 while defending himself, and he received a “write up causing credit loss.” (Id.) 19 Plaintiff submitted an inmate appeal on February 14, 2020, requesting a single cell. 20 (See id. at 5.) However, Defendant Whitman denied this request “despite [Plaintiff’s] 21 safety concerns.” (Id.) In support of this decision to deny Plaintiff’s request, Whitman 22 cited to Plaintiff’s purported statements to other CAL officials that Plaintiff had “no 23 immediate safety concerns.” (Id.) Plaintiff claims his safety concerns were ignored, and 24 /// 25

26 1 These are the allegations set forth in Plaintiff’s Complaint but do not include the allegations against 27 Defendant White, who has been dismissed from this action. See ECF No. 4 at 9.

28 1 “staff threatened to transfer [Plaintiff] to another prison if [he] did not withdraw [his] initial 2 safety concern.” (Id.) 3 Plaintiff seeks injunctive relief, $500,000 in compensatory damages, $500,000 in 4 punitive damages, restoration of 180 days lost credits, and an “emergency temporary order 5 for single cell pending resolution of this lawsuit.” (Id. at 7.) 6 II. Procedural History 7 Plaintiff filed his initial Complaint and Motion to Proceed IFP in this case on 8 October 5, 2020. (See ECF Nos. 1, 2.) The Court granted Plaintiff’s Motion to Proceed 9 IFP, dismissed his Fourteenth Amendment due process claims against Defendant White for 10 failing to state a claim and found that Plaintiff’s Complaint contained “sufficient factual 11 matter, accepted as true,” to state an Eighth Amendment claim against Defendants Cordero 12 and Whitman for relief that are “plausible on [their] face,” to survive the “low threshold” 13 for proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 14 1915A(b). (ECF No. 4 at 9.) Accordingly, the Court directed the U.S. Marshal’s service 15 to effect service on Plaintiff’s behalf. (See id. at 10–11.) 16 On January 19, 2021, Defendant Whitman filed the present Motion to Dismiss 17 Plaintiff’s Eighth Amendment claim for failing to state a claim pursuant to Federal Rules 18 of Civil Procedure 12(b)(6). (See Mot.) On February 1, 2021, Plaintiff filed his Opposition 19 to Defendant Whitman’s Motion. (See Opp’n.) Defendant Whitman filed her Reply on 20 March 12, 2021. (See Reply.) 21 LEGAL STANDARD 22 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 23 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 24 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 25 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City 26 of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. 2018). 27 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s 28 substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide 1 a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th 2 Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a 3 written instrument that is an exhibit to a pleading is a part of the pleading for all 4 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 5 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 6 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be 7 considered” in ruling on a Rule 12(b)(6) motion to dismiss). However, exhibits that 8 contradict the claims in a complaint may fatally undermine the complaint’s allegations. 9 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (holding a 10 plaintiff can “plead himself out of a claim by including . . . details contrary to his claims”) 11 (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998) (“[Courts] 12 are not required to accept as true conclusory allegations which are contradicted by 13 documents referred to in the complaint.”))); see also Nat’l Assoc. for the Advancement of 14 Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (holding 15 courts “may consider facts contained in documents attached to the complaint” to determine 16 whether the complaint states a claim for relief). 17 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 18 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 19 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); 20 Villa v. Maricopa Cnty., 865 F.3d 1224, 1228–29 (9th Cir. 2017). A claim is facially 21 plausible “when the plaintiff pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 23 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or 24 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, 25 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 26 U.S. at 678–79; Somers v. Apple, Inc., 729 F.3d 953, 959–60 (9th Cir. 2013). “Threadbare 27 recitals of the elements of a cause of action, supported by mere conclusory statements, do 28 not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual 1 allegations,’” Rule 8 nevertheless “demands more than an unadorned, the defendant- 2 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 3 555). 4 Therefore, “[f]actual allegations must be enough to raise a right to relief above the 5 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are 6 merely consistent with a defendant’s liability, it stops short of the line between possibility 7 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and internal 8 quotation marks omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 9 2012) (en banc). “In sum, for a complaint to survive a motion to dismiss, the non- 10 conclusory ‘factual content,’ and reasonable inferences [drawn] from that content, must be 11 plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 12 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). 13 ANALYSIS 14 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 15 elements: (1) that a right secured by the Constitution or laws of the United States was 16 violated, and (2) that the alleged violation was committed by a person acting under the 17 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 18 1035–36 (9th Cir. 2015). 19 I. Eighth Amendment Claims 20 Defendant Whitman moves to dismiss the Eighth Amendment claims against her. 21 See generally Mot. “[T]he Eighth Amendment requires that prison officials ‘must take 22 reasonable measures to guarantee the safety of the inmates.’” United States v. Williams, 23 842 F.3d 1143, 1153 (9th Cir. 2016) (Kleinfeld, J., dissenting) (quoting Griffin v. Gomez, 24 741 F.3d 10, 21 (9th Cir. 2014)). Prison officials have a duty under the Eighth Amendment 25 “to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 26 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 27 558 (1st Cir. 1988)); see also Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009). “It is 28 not, however, every injury suffered by one prisoner at the hands of another that translates 1 into constitutional liability for prison officials responsible for the victim’s safety.” Farmer, 2 511 U.S. at 834. “In Wilson v. Seiter, [the Supreme Court] rejected a reading of the Eighth 3 Amendment that would allow liability to be imposed on prison officials solely because of 4 the presence of objectively inhumane prison conditions.” Id. at 838 (citing Wilson, 501 5 U.S. 294, 299–302 (1991)). 6 Therefore, a prison official’s failure to protect an inmate violates the Eighth 7 Amendment only when “(1) the deprivation alleged is ‘objectively, sufficiently serious’ 8 and (2) the prison officials had a ‘sufficiently culpable state of mind,’ acting with deliberate 9 indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (quoting Farmer, 10 511 U.S. at 834). 11 To satisfy the first objective pleading requirement, the prisoner must allege sufficient 12 factual content to plausibly “‘show [] that he is incarcerated under conditions posing a 13 substantial risk of serious harm.’” Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 14 1075 (9th Cir. 2013) (quoting Farmer, 511 U.S. at 834); see also Disability Rights 15 Montana, Inc. v. Batista, 930 F.3d 1090, 1097 (9th Cir. 2019). To satisfy the second 16 subjective pleading requirement, he must also “plead factual content” to show that each 17 defendant was aware of facts from which the inference could be drawn that a substantial 18 risk of harm existed, and that each also drew and disregarded that inference. Iqbal, 556 19 U.S at 678; Farmer, 511 U.S. at 837. 20 Defendant Whitman argues that she cannot be held liable for Plaintiff’s Eighth 21 Amendment claims because she only learned of the alleged specific threat to Plaintiff’s 22 safety seven months after the alleged altercation, and Plaintiff has only alleged a 23 “generalized fear of harm,” which is insufficient to state a claim. (Mot. at 12–13.) 24 Specifically, Defendant Whitman argues that there is “no allegation that Plaintiff 25 complained to Whitman beforehand, or that she had any knowledge of the July 28, 2019 26 incident.” (Id. at 12.) 27 In his Opposition, Plaintiff does not contradict the assertion by Whitman that she 28 had no knowledge of any threat to Plaintiff’s safety prior to the incident that occurred on 1 July 28, 2019. Instead, Plaintiff argues that once Whitman became aware of this incident 2 following the filing of his grievance and “three incidents of victimization” from his 3 previous cellmates, “that is sufficient causation” to show that Whitman became aware of 4 his safety concerns but refused to provide him with a single cell. (Opp’n at 1–2.) 5 Plaintiff further contends that Defendant Whitman’s Motion should be “denied as 6 frivolous” because it is “presumptuous to assert that this Court was wrong in this sua sponte 7 screening.” (Id. at 1.) However, as the Court informed Plaintiff in the November 5, 2020 8 Order screening his Complaint, “the sua sponte screening and dismissal procedure is 9 cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a 10 defendant] may choose to bring.” (Nov. 5, 2020 Order, ECF No. 4 (quoting Teahan v. 11 Wilhelm, 481 F. Supp. 2d 115, 119 (S.D. Cal. 2007))). 12 Here, the Court finds that Plaintiff’s Complaint fails to sufficiently allege any 13 specific facts that would demonstrates that Whitman was aware of a risk to his safety prior 14 to the incident on July 28, 2019. Plaintiff does not allege any facts to plausibly show that 15 Whitman knew of and disregarded any known or obvious excessive risk to his safety or 16 failed to take reasonable steps to abate such a risk prior to July 28, 2019. Farmer, 511 at 17 837. 18 Whitman also argues that to the extent that Plaintiff asked for “permanent single- 19 cell status seven months later, it was due to a generalized fear of harm only.” (Mot. at 13.) 20 Plaintiff argues that Whitman’s response to his grievance put her on notice that he had a 21 history of exposure to violence when he was housed with other inmates. (See Opp’n at 1.) 22 Attached to Plaintiff’s Complaint, he submits the appeal response prepared by Whitman 23 responding to Plaintiff’s grievance that he filed requesting a single cell “to protect [his] 24 safety.” (Compl. at 42–43, First Level Appeal Response Log No. CAL-D-00261 dated 25 March 25, 2020.) In this response, Whitman writes that Plaintiff spoke with Lieutenant 26 /// 27 /// 28 /// 1 Cowey, and Plaintiff told Cowey that he “had no enemy or safety concerns and could 2 safely program on CAL’s Facility D.” (Id. at 43.) In his Opposition, Plaintiff argues that 3 when he told Cowey he had no safety concerns, he was speaking to the fact that at the time 4 he was housed in administrative segregation (“ad-seg”) in a single cell and thus, had no 5 immediate safety concern. (Opp’n at 2.) However, Plaintiff argues that he had a safety 6 concern when he was released from ad-seg. (See id.) While it may be true that Plaintiff 7 had a safety concern after Whitman responded to his grievance, Plaintiff’s only allegations 8 against Whitman arise from her response to this grievance. Plaintiff acknowledges that he 9 did report to Cowey, the correctional officer who interviewed Plaintiff regarding his 10 grievance, that he did not have any safety concerns. He does not allege that he ever 11 addressed his safety concerns directly to Whitman following her response to his grievance. 12 Plaintiff must include “factual content that allows the court to draw the reasonable 13 inference” that Whitman knew he faced a substantial risk of danger, and yet chose to ignore 14 it. Iqbal, 556 U.S. at 678, Farmer, 511 U.S. at 847. He has not done so. 15 Accordingly, Defendant Whitman’s Motion to Dismiss Plaintiff’s Eighth 16 Amendment claims against her in her individual capacity is GRANTED. 17 II. Official Capacity Claims 18 Defendant Whitman also argues that Plaintiff has not “stat[ed] a viable official- 19 capacity Section 1983 claim against [her].” (Mot. at 16.) The Eleventh Amendment bars 20 a prisoner from seeking monetary damages in a § 1983 action against state actors sued in 21 their official capacities. See Will v. Michigan, 491 U.S. 58, 66 (1989). However, it does 22 not bar actions against state officials seeking prospective injunctive relief. See Quern v. 23 Jordan, 44 U.S. 332, 337 (1979). 24 “A plaintiff seeking injunctive relief against the State is not required to allege a 25 named official’s personal involvement in the acts or omissions constituting the alleged 26 27 28 1 constitutional violation. Rather a plaintiff need only identify the law or policy challenged 2 as a constitutional violation and name the official within the entity who can appropriately 3 respond to injunctive relief.” Hartmann v. Cal. Dep’t of Corr. & Rehab, 707 F.3d 1114, 4 1127 (9th Cir. 2013) (internal citations omitted). 5 Whitman argues that while it is “undisputed Plaintiff is seeking prospective 6 injunctive relief in the form of an order preventing CDCR from assigning him a cellmate,” 7 Plaintiff has failed to allege that he is “challenging the constitutionality of a custom or 8 policy” or that Whitman is “the appropriate official to respond to the requested relief.” 9 (Mot. at 17.) 10 Plaintiff has alleged that Whitman was the CAL official who responded to his 11 request for a single cell based on his safety concerns and thus, she is the appropriate official 12 to handle his request for injunctive relief. (See Compl. at 2, 5.) Plaintiff has also alleged 13 that the “CDCR policy” to “not give a single cell until after violence has occurred” violates 14 his constitutional rights. (Id. at 5.) Therefore, the Court finds that Plaintiff has adequately 15 alleged that Whitman is the “proper official-capacity” defendant for his Eighth Amendment 16 claims. Hartman, 707 F.3d at 1127. 17 Accordingly, Defendant Whitman’s Motion to Dismiss Plaintiff’s Eighth 18 Amendment official-capacity claim against her is DENIED. 19 III. State Law Claims 20 Defendant Whitman also seeks dismissal of Plaintiff’s claims brought under the 21 Prion Rape Elimination Act (“PREA”) on the ground that PREA does not create a private 22 cause of action. (See Mot. at 16.) In his Complaint, which is not entirely clear, it appears 23 that Plaintiff is alleging that Whitman violated PREA when she denied his request for a 24 single cell “despite [his] safety concerns.” (See Compl. at 5.) 25 While neither the Supreme Court nor the Ninth Circuit has ruled on whether a private 26 cause of action can be brought under PREA, “district courts nationwide has found that the 27 PREA does not create a private cause of action that can be brought by an individual 28 plaintiff.” Hatcher v. Harrington, 2015 WL 474313, at *5 (D. Haw. Feb. 5. 2015) (“[T]his 1 Court concludes that the PREA creates no private right of action.” (citations omitted)); 2 Chapman v. Willis, 2013 WL 2322947, at *4 (W.D. Va. May 28, 2013) (same); Pope v. 3 Or. Dep’t of Corr., 2012 WL 1866601, at *4 (D. Or. May 22, 2012); Porter v. Jennings, 4 2012 WL 1434986, at *1 (E.D. Cal. Apr. 25, 2012); Ball v. Beckworth, 2011 WL 4375806, 5 at *4 (D. Mont. Aug. 31, 2011), R & R adopted 2011 WL 4382074 (D. Mont. Sept. 19, 6 2011); Bell v. Cnty. of L.A., 2008 WL 4375768, at *6 (C.D. Cal. Aug. 25, 2008). 7 A private cause of action “to enforce federal law must be created by Congress.” 8 Alexander v. Sandoval, 532 U.S. 275, 286 (2001). In order for an individual to bring a 9 private cause of action under a federal statute, they must show that this ability is 10 “authorized by the explicit statutory test or, in some instances, may be implied from the 11 statutory test,” where there is “clear evidence” of Congressional intent. Nisqually Indian 12 Tribe v. Gregoire, 623 F.3d 923, 929 (9th Cir. 2010). This Court is persuaded by the 13 findings of these district courts that there is “[n]othing in the PREA [that] explicitly or 14 implicitly suggests that Congress intended to create a private right of action for inmates to 15 sue prison officials for noncompliance with the Act.” Hatcher, 2015 WL 474313, at *5. 16 Thus, Defendant Whitman’s Motion to Dismiss Plaintiff’s claims brought pursuant 17 to PREA is GRANTED. 18 IV. Claims Against Cordero 19 As noted above, Defendant Cordero has not been properly served in this action. The 20 U.S. Marshal returned proof of service as unexecuted on January 15, 2021, with a notation 21 that Defendant Cordero “transferred out of Calipatria, unable to accept service on his 22 behalf.” (ECF No. 21.) 23 Rule 4 of the Federal Rules of Civil Procedure provides that: 24 [i]f a defendant is not served within 90 days after the complaint is filed, the court–on motion or on its own after notice to the 25 plaintiff–must dismiss the action without prejudice against the 26 defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court 27 must extend the time for service for an appropriate period. 28 1 In cases involving a plaintiff proceeding IFP, a United States Marshal, upon order 2 of the court, serves the summons and the complaint. Fed. R. Civ. P. 4(c)(3) (providing for 3 service by a United States Marshal or deputy marshal “if the plaintiff is authorized to 4 proceed in forma pauperis under 28 U.S.C § 1915”); 28 U.S.C. § 1915(d) (“The officers of 5 the court shall issue and serve all process, and perform all duties in [IFP] cases.”). “[A]n 6 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 7 Marshal for service of the summons and complaint and . . . should not be penalized by 8 having his action dismissed for failure to effect service where the U.S. Marshal or the court 9 clerk has failed to perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 10 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)), abrogated on other 11 grounds by Sandin v. Conner, 515 U.S. 472 (1995). “So long as the prisoner has furnished 12 the information necessary to identify the defendant, the marshal’s failure to effect service 13 is ‘automatically good cause.’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 14 902 F.2d 598, 603 (7th Cir. 1990)). 15 The Court enjoys broad discretion under Rule 4(m) to extend time for service even 16 without a showing of good cause. In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001); Mann 17 v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (holding that district court may, 18 under the broad discretion granted by Fed. R. Civ. P. 4(m), extend time for service 19 retroactively after the service period has expired). 20 Here, the Court finds Plaintiff has provided information “necessary to sufficiently 21 identify” Defendant Cordero. Walker, 14 F.3d at 1422. Because it appears the only reason 22 the U.S. Marshal was previously unable to effect service upon Defendant Cordero may be 23 because he is no longer employed at CAL, or he transferred to another institution within 24 the CDCR, and so long as the privacy of Defendant Cordero’s forwarding addressed can 25 be preserved, Plaintiff is entitled to rely on the U.S. Marshal to effect service upon him on 26 his behalf. See Puett, 912 F.2d at 275. 27 The Court will therefore direct the Deputy Attorney General assigned to this case to 28 contact the Litigation Coordinator at CAL and ask that he or she provide any and all 1 forwarding addresses for Defendant Cordero in his or her possession, or which are 2 obtainable from the CDCR’s personnel records, and to forward those addresses to the U.S. 3 Marshal in a confidential memorandum indicating that the summons and Plaintiff’s 4 Complaint (ECF No. 1) is to be served upon Cordero at the address provided.4 5 CONCLUSION 6 Accordingly, the Court: 7 (1) GRANTS Defendant Whitman’s Motion to Dismiss the Eighth Amendment 8 claims against her in her individual capacity pursuant to Fed. R. Civ. P. 12(b)(6); 9 (2) DENIES Defendant Whitman’s Motion to Dismiss the Eighth Amendment 10 claims against her in her official capacity pursuant to Fed. R. Civ. P. 12(b)(6); 11 (3) GRANTS Defendant Whitman’s Motion to Dismiss all state law claims 12 against her pursuant to Fed. R. Civ. P. 12(b)(6). 13 It is further Ordered that: 14 (4) The Deputy Attorney General assigned to this case shall determine the 15 forwarding address for Defendant Cordero from the records of the Litigation Coordinator 16 at CAL, and provide those addresses to the U.S. Marshal in a confidential memorandum 17 indicating that the summons and Plaintiff’s Complaint (ECF No. 1) are to be served upon 18 Defendant Cordero at that address, as soon as possible; 19 5) The U.S. Marshal, pursuant to Fed. R. Civ. P. 4(c)(3), (m) and 28 U.S.C. 20 § 1915(d), is directed to effect service of Plaintiff’s Complaint (ECF No. 1) and summons 21 upon Defendant Cordero within 30 days of receiving Cordero’s confidential forwarding 22 address. The U.S. Marshal shall return proof of that service, and/or any attempts of 23 unsuccessful service as to Defendant Cordero within 30 days of receipt of Cordero’s 24

25 26 4 Pursuant to this confidential service Order, Defendant Cordero’s address shall not appear on any U.S. Marshal Form 285, be made accessible to Plaintiff under any circumstances, or be made part of the Court’s 27 record. While a “state prison official may be justifiably reluctant to provide employee addresses to a prisoner . . . due to security concerns, it can hardly claim the same reluctance in providing the information 28 1 address, but shall not include the confidential forwarding addresses on the U.S. Marshal 2 || Form 285s to be filed in the Court’s docket. 3 IT IS SO ORDERED. 4 || Dated: June 1, 2021 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13