1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JORGE ALBERTO FARIAS, 11 Case No. 21-04167 BLF (PR) Plaintiff, 12 ORDER DISMISSING NON- COGNIZABLE CLAIMS AND OF v. 13 SERVICE; DIRECTING
DEFENDANTS TO FILE
14 DISPOSITIVE MOTION OR MATTHEW ATCHLEY, et al., NOTICE REGARDING SUCH 15 MOTION; INSTRUCTIONS TO Defendants. CLERK 16
17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against prison staff at the Salinas Valley State Prison (“SVSP”). Dkt. No. 1. 20 On September 24, 2021, the Court screened the complaint and found it stated cognizable 21 claims of excessive force, denial of his right to access to the courts, and an ADA claim. 22 Dkt. No. 11 at 10. The Court granted leave to amend with respect to the remaining claims 23 or, in the alternative, to file notice that he wishes to proceed on the cognizable claims and 24 strike all other claims from the complaint. Id. Plaintiff was advised that if he did not file 25 an amended complaint in the time provided, i.e., twenty-eight days from the date the order 26 was filed, the action would proceed on the cognizable claims. Id. at 11. 27 The deadline has passed, and Plaintiff has filed no response. Accordingly, this 1 dismissed for failure to state a claim. Id. 2 3 DISCUSSION 4 A. Standard of Review 5 A federal court must conduct a preliminary screening in any case in which a 6 prisoner seeks redress from a governmental entity or officer or employee of a 7 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 8 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 9 upon which relief may be granted or seek monetary relief from a defendant who is immune 10 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 11 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged violation was committed by a person acting under the 15 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. Plaintiff’s Claims 17 In an initial screening order, the Court found the complaint set forth the following 18 cognizable claims: (1) excessive force against Defendants Lopez, Gutierrez-Aparicio, and 19 Barrera-Negrete; (2) denial of his right of access to the courts against Defendants Cortina 20 and Ear; and (3) ADA claims against Defendants Lopez, Gutierrez-Aparicio, Barrera- 21 Negrete, Cortina, and Ear. Dkt. No. 11 at 4, 7-8, 9. 22 The Court dismissed Plaintiff’s due process claim for failure to state a claim. Id. at 23 6-7, 10. Plaintiff was given leave to amend with respect to the deficient claims, but he has 24 failed to do so. Id. at 10/ Accordingly, the following claims are DISMISSED with 25 prejudice for failure to state a claim: (1) Eighth Amendment claim based on the denial of 26 Plaintiff’s asthma inhaler; (2) all claims against Defendant Atchley; and (3) Eighth 1 Cervantes, Clavijo, and Soto. Id. at 4-5, 6, 9. 2 3 CONCLUSION 4 For the foregoing reasons, the Court orders as follows: 5 1. This action shall proceed on the cognizable claims described above. See 6 supra at 2. All other claims and Defendants are DISMISSED with prejudice from this 7 action for failure to state a claim. Accordingly, the Clerk shall terminate the following 8 defendants from this action: Matthew Atchley, H. Clavijo, F. Soto, M. Cervantes, and J. 9 Larraux. 10 2. The following defendants shall be served at SVSP: 11 a. Correctional Officer C. Lopez 12 b. Correctional Officer Jose Gutierrez-Aparicio 13 c. Correctional Officer P. Barrera-Negrete 14 d. Correctional Officer A. Cortina 15 e. Correctional Officer D. C. Ear 16 Service on the listed defendant(s) shall proceed under the California Department of 17 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 18 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 19 on CDCR via email the following documents: the operative complaint, and any 20 attachments thereto, Dkt. No.1, a copy of the court’s “Order of Dismissal with Leave to 21 Amend,” Dkt. No. 11, this order of service, a CDCR Report of E-Service Waiver form and 22 a summons. The clerk also shall serve a copy of this order on the plaintiff. 23 No later than 40 days after service of this order via email on CDCR, CDCR shall 24 provide the court a completed CDCR Report of E-Service Waiver advising the court which 25 defendant(s) listed in this order will be waiving service of process without the need for 26 service by the United States Marshal Service (USMS) and which defendant(s) decline to 1 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 2 days, shall file with the court a waiver of service of process for the defendant(s) who are 3 waiving service. 4 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 5 each defendant who has not waived service according to the CDCR Report of E-Service 6 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 7 forms and copies of this order, the summons and the operative complaint for service upon 8 each defendant who has not waived service. The clerk also shall provide to the USMS a 9 copy of the CDCR Report of E-Service Waiver. 10 3. No later than ninety-one (91) days from the date this order is filed, 11 Defendants shall file a motion for summary judgment or other dispositive motion with 12 respect to the claims in the complaint found to be cognizable above. 13 a. Any motion for summary judgment shall be supported by adequate 14 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 15 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 16 qualified immunity found, if material facts are in dispute. If any Defendant is of the 17 opinion that this case cannot be resolved by summary judgment, he shall so inform the 18 Court prior to the date the summary judgment motion is due. 19 b. In the event Defendants file a motion for summary judgment, the 20 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 21 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 22 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 23 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 24 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 25 motion is filed. 26 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 1 || must come forward with evidence showing triable issues of material fact on every essential 2 || element of his claim).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JORGE ALBERTO FARIAS, 11 Case No. 21-04167 BLF (PR) Plaintiff, 12 ORDER DISMISSING NON- COGNIZABLE CLAIMS AND OF v. 13 SERVICE; DIRECTING
DEFENDANTS TO FILE
14 DISPOSITIVE MOTION OR MATTHEW ATCHLEY, et al., NOTICE REGARDING SUCH 15 MOTION; INSTRUCTIONS TO Defendants. CLERK 16
17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against prison staff at the Salinas Valley State Prison (“SVSP”). Dkt. No. 1. 20 On September 24, 2021, the Court screened the complaint and found it stated cognizable 21 claims of excessive force, denial of his right to access to the courts, and an ADA claim. 22 Dkt. No. 11 at 10. The Court granted leave to amend with respect to the remaining claims 23 or, in the alternative, to file notice that he wishes to proceed on the cognizable claims and 24 strike all other claims from the complaint. Id. Plaintiff was advised that if he did not file 25 an amended complaint in the time provided, i.e., twenty-eight days from the date the order 26 was filed, the action would proceed on the cognizable claims. Id. at 11. 27 The deadline has passed, and Plaintiff has filed no response. Accordingly, this 1 dismissed for failure to state a claim. Id. 2 3 DISCUSSION 4 A. Standard of Review 5 A federal court must conduct a preliminary screening in any case in which a 6 prisoner seeks redress from a governmental entity or officer or employee of a 7 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 8 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 9 upon which relief may be granted or seek monetary relief from a defendant who is immune 10 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 11 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged violation was committed by a person acting under the 15 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. Plaintiff’s Claims 17 In an initial screening order, the Court found the complaint set forth the following 18 cognizable claims: (1) excessive force against Defendants Lopez, Gutierrez-Aparicio, and 19 Barrera-Negrete; (2) denial of his right of access to the courts against Defendants Cortina 20 and Ear; and (3) ADA claims against Defendants Lopez, Gutierrez-Aparicio, Barrera- 21 Negrete, Cortina, and Ear. Dkt. No. 11 at 4, 7-8, 9. 22 The Court dismissed Plaintiff’s due process claim for failure to state a claim. Id. at 23 6-7, 10. Plaintiff was given leave to amend with respect to the deficient claims, but he has 24 failed to do so. Id. at 10/ Accordingly, the following claims are DISMISSED with 25 prejudice for failure to state a claim: (1) Eighth Amendment claim based on the denial of 26 Plaintiff’s asthma inhaler; (2) all claims against Defendant Atchley; and (3) Eighth 1 Cervantes, Clavijo, and Soto. Id. at 4-5, 6, 9. 2 3 CONCLUSION 4 For the foregoing reasons, the Court orders as follows: 5 1. This action shall proceed on the cognizable claims described above. See 6 supra at 2. All other claims and Defendants are DISMISSED with prejudice from this 7 action for failure to state a claim. Accordingly, the Clerk shall terminate the following 8 defendants from this action: Matthew Atchley, H. Clavijo, F. Soto, M. Cervantes, and J. 9 Larraux. 10 2. The following defendants shall be served at SVSP: 11 a. Correctional Officer C. Lopez 12 b. Correctional Officer Jose Gutierrez-Aparicio 13 c. Correctional Officer P. Barrera-Negrete 14 d. Correctional Officer A. Cortina 15 e. Correctional Officer D. C. Ear 16 Service on the listed defendant(s) shall proceed under the California Department of 17 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 18 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 19 on CDCR via email the following documents: the operative complaint, and any 20 attachments thereto, Dkt. No.1, a copy of the court’s “Order of Dismissal with Leave to 21 Amend,” Dkt. No. 11, this order of service, a CDCR Report of E-Service Waiver form and 22 a summons. The clerk also shall serve a copy of this order on the plaintiff. 23 No later than 40 days after service of this order via email on CDCR, CDCR shall 24 provide the court a completed CDCR Report of E-Service Waiver advising the court which 25 defendant(s) listed in this order will be waiving service of process without the need for 26 service by the United States Marshal Service (USMS) and which defendant(s) decline to 1 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 2 days, shall file with the court a waiver of service of process for the defendant(s) who are 3 waiving service. 4 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 5 each defendant who has not waived service according to the CDCR Report of E-Service 6 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 7 forms and copies of this order, the summons and the operative complaint for service upon 8 each defendant who has not waived service. The clerk also shall provide to the USMS a 9 copy of the CDCR Report of E-Service Waiver. 10 3. No later than ninety-one (91) days from the date this order is filed, 11 Defendants shall file a motion for summary judgment or other dispositive motion with 12 respect to the claims in the complaint found to be cognizable above. 13 a. Any motion for summary judgment shall be supported by adequate 14 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 15 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 16 qualified immunity found, if material facts are in dispute. If any Defendant is of the 17 opinion that this case cannot be resolved by summary judgment, he shall so inform the 18 Court prior to the date the summary judgment motion is due. 19 b. In the event Defendants file a motion for summary judgment, the 20 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 21 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 22 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 23 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 24 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 25 motion is filed. 26 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 1 || must come forward with evidence showing triable issues of material fact on every essential 2 || element of his claim). Plaintiffis cautioned that failure to file an opposition to 3 || Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 4 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 5 || Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 6 || F.3d 651, 653 (9th Cir. 1994). 7 5. Defendants shall file a reply brief no later than fourteen (14) days after 8 || Plaintiff's opposition is filed. 9 6. The motion shall be deemed submitted as of the date the reply brief is due. 10 || No hearing will be held on the motion unless the Court so orders at a later date. 11 7. All communications by the Plaintiff with the Court must be served on 2 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true E 13 || copy of the document to Defendants or Defendants’ counsel. S 14 8. Discovery may be taken in accordance with the Federal Rules of Civil 3 15 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local A 16 || Rule 16-1 is required before the parties may conduct discovery. 5 17 9. It is Plaintiffs responsibility to prosecute this case. Plaintiff must keep the 5 18 || court informed of any change of address and must comply with the court’s orders in a 19 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 20 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 71 10. Extensions of time must be filed no later than the deadline sought to be 22 || extended and must be accompanied by a showing of good cause. 23 IT ISSO ORDERED. 24 || Dated: November 17,2021 heh Ly homens BETH LABSON F REEMAN United States District Judge 26 |! Order Dism. Con-Cog. Claims and of Service 57 PRO-SE\BLF\CR.21\04167Farias_sve