Duckett v. Garcia

• Court: District Court, N.D. California
• Decided: January 18, 2024
• Docket: 5:23-cv-04748
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASMINE DUCKETT, 11 Case No. 23-cv-04748 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE v. 13 DISPOSITIVE MOTION OR

NOTICE REGARDING SUCH

14 MOTION; INSTRUCTIONS TO P. GARCIA, CLERK 15 Defendant.

16 17 18 Plaintiff, a state inmate, filed a civil rights complaint under 42 U.S.C. § 1983 19 against Correctional Officer P. Garcia at Salinas Valley State Prison (“SVSP”). Dkt. No. 20 1. This matter was reassigned to the undersigned on October 18, 2023. Dkt. No. 7. 21 Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a separate 22 order. Dkt. No. 10. 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Plaintiff’s Claims 10 Plaintiff claims that she is a transgender inmate who was subjected to a cross- 11 gender body search by Defendant P. Garcia, in violation of her civil rights. Dkt. No. 1 at 12 3. Defendant Garcia forced Plaintiff to submit to the search despite being informed of her 13 right to be searched by a female peace officer. Id. Liberally construed, Plaintiff states a 14 claim under the Fourth Amendment for an unreasonable search. See Bull v. San 15 Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010) (en banc); Michenfelder v. Sumner, 860 16 F.2d 328, 333 (9th Cir. 1988). 17 18 CONCLUSION 19 For the foregoing reasons, the Court orders as follows: 20 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 21 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 22 of the complaint, Dkt. No. 1, all attachments thereto, and a copy of this order upon 23 Correctional Officer P. Garcia at Salinas Valley State Prison (P.O. Box 1050, 24 Soledad, CA 93960). The Clerk shall also mail a copy of this Order to Plaintiff. 25 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 26 requires them to cooperate in saving unnecessary costs of service of the summons and the 1 by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they 2 will be required to bear the cost of such service unless good cause shown for their failure 3 to sign and return the waiver form. If service is waived, this action will proceed as if 4 Defendants had been served on the date that the waiver is filed, except that pursuant to 5 Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty 6 (60) days from the day on which the request for waiver was sent. (This allows a longer 7 time to respond than would be required if formal service of summons is necessary.) 8 Defendants are asked to read the statement set forth at the foot of the waiver form that 9 more completely describes the duties of the parties with regard to waiver of service of the 10 summons. If service is waived after the date provided in the Notice but before Defendants 11 have been personally served, the Answer shall be due sixty (60) days from the date on 12 which the request for waiver was sent or twenty (20) days from the date the waiver form is 13 filed, whichever is later. 14 3. No later than ninety-one (91) days from the date this order is filed, 15 Defendants shall file a motion for summary judgment or other dispositive motion with 16 respect to the claims in the complaint found to be cognizable above. 17 a. Any motion for summary judgment shall be supported by adequate 18 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 19 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 20 qualified immunity found, if material facts are in dispute. If any Defendant is of the 21 opinion that this case cannot be resolved by summary judgment, he shall so inform the 22 Court prior to the date the summary judgment motion is due. 23 b. In the event Defendants file a motion for summary judgment, the 24 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 25 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 26 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 1 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 2 motion is filed. 3 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 4 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 5 must come forward with evidence showing triable issues of material fact on every essential 6 element of his claim). Plaintiff is cautioned that failure to file an opposition to 7 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 8 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 9 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 10 F.3d 651, 653 (9th Cir. 1994). 11 5. Defendants shall file a reply brief no later than fourteen (14) days after 12 Plaintiff’s opposition is filed. 13 6. The motion shall be deemed submitted as of the date the reply brief is due. 14 No hearing will be held on the motion unless the Court so orders at a later date. 15 7. All communications by the Plaintiff with the Court must be served on 16 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 17 copy of the document to Defendants or Defendants’ counsel. 18 8. Discovery may be taken in accordance with the Federal Rules of Civil 19 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 20 Rule 16-1 is required before the parties may conduct discovery. 21 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 22 court informed of any change of address and must comply with the court’s orders in a 23 timely fashion. Failure to do so may result in the dismissal of this action for failure to 24 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 25 10. Extensions of time must be filed no later than the deadline sought to be 26 extended and must be accompanied by a showing of good cause. 1 IT IS SO ORDERED. 2 || Dated: January 18, 2024 foinbhacicen _ BETH LABSON FREEMAN 3 United States District Judge 4 5 6 7 8 9 10 11 12

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