1 2 3 6 7 MICHAEL BARKARRI FOSTER, Case No. 22-cv-00878-WHO (PR)
Plaintiff, 8 ORDER OF SERVICE; v. 9 ORDER DIRECTING 10 C. CROSBY, et al., DEFENDANTS TO FILE A DISPOSITIVE MOTION OR Defendants. MOTION;
12 INSTRUCTIONS TO CLERK
14 16 Plaintiff Michael Barkarri Foster alleges his jailors at Pelican Bay State Prison used 17 excessive force against him in violation of the Eighth Amendment. His first amended 42 18 U.S.C. § 1983 complaint containing these allegations is now before the Court for review 19 pursuant to 28 U.S.C. § 1915A(a). 20 Foster has stated cognizable Eighth Amendment claims against various Pelican Bay 21 correctional officers. The Court directs defendants to file in response to the first amended 22 complaint a dispositive motion, or a notice regarding such motion, on or before March 6, 23 2023. 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 be liberally construed. 4 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 6 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 8 plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 10 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 11 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 12 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 13 (9th Cir. 1994). 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. See West v. Atkins, 487 U.S. 42, 48 (1988). 18 B. Legal Claims 19 Foster’s original complaint was dismissed with leave to amend because he named 20 many defendants but provided specific factual allegations against only one. (Order 21 Dismissing Complaint, Dkt. No. 9 at 2.) In his first amended complaint, Foster alleges 22 that in February 2021 prison guards at Pelican Bay State Prison battered and stabbed him 23 in violation of the Eighth Amendment. (First Am. Compl., Dkt. No. 10 at 5.) When 24 liberally construed, Foster has stated Eighth Amendment claims against correctional 25 officers Sergeant Puente; L. Sullenger; D. Eades; C. Crosby; M. Shaffer; and B. Tubbs. 27 For the foregoing reasons, the Court orders as follows: 1 all attachments thereto, on defendants Sergeant Puente; L. Sullenger; D. Eades; C. Crosby; 2 M. Shaffer; and B. Tubbs, all correctional officers at Pelican Bay State Prison, and orders 3 these defendants to respond to the cognizable claims raised in the complaint. 4 2. Service on these defendants shall proceed under the California Department 5 of Corrections and Rehabilitation’s e-service program for civil rights cases from prisoners 6 in CDCR custody. In accordance with the program, the Clerk is directed to serve on 7 CDCR via email the following documents: the first amended complaint (Docket No. 10) 8 and its attachments; this order; a CDCR Report of E-Service Waiver form; and a 9 summons. The Clerk also shall serve a copy of this order on the plaintiff. 10 3. No later than 40 days after service of this order via email on CDCR, CDCR 11 shall provide the court a completed CDCR Report of E-Service Waiver advising the court 12 which defendant(s) listed in this order will be waiving service of process without the need 13 for service by the United States Marshal Service (USMS) and which defendant(s) decline 14 to waive service or could not be reached. CDCR also shall provide a copy of the CDCR 15 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 16 days, shall file with the court a waiver of service of process for the defendant(s) who are 17 waiving service. 18 4. Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall 19 prepare for each defendant who has not waived service according to the CDCR Report of 20 E-Service Waiver a USM-205 Form. The Clerk shall provide to the USMS the completed 21 USM-205 forms and copies of this order, the summons and the operative complaint for 22 service upon each defendant who has not waived service. 23 5. On or before March 6, 2023, defendants shall file a motion for summary 24 judgment or other dispositive motion with respect to the claim(s) in the complaint found to 25 be cognizable above. 26 a. If defendants elect to file a motion to dismiss on the grounds plaintiff 27 failed to exhaust his available administrative remedies as required by 42 U.S.C. 1 Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). 2 b. Any motion for summary judgment shall be supported by adequate 3 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 4 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 5 qualified immunity found, if material facts are in dispute. If any defendant is of the 6 opinion that this case cannot be resolved by summary judgment, he shall so inform the 7 Court prior to the date the summary judgment motion is due. 8 6. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 9 and served on defendants no later than forty-five (45) days from the date defendants’ 10 motion is filed. 11 7. Defendants shall file a reply brief no later than fifteen (15) days after 12 plaintiff’s opposition is filed. 13 8. 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 9. 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 10. 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.
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1 2 3 6 7 MICHAEL BARKARRI FOSTER, Case No. 22-cv-00878-WHO (PR)
Plaintiff, 8 ORDER OF SERVICE; v. 9 ORDER DIRECTING 10 C. CROSBY, et al., DEFENDANTS TO FILE A DISPOSITIVE MOTION OR Defendants. MOTION;
12 INSTRUCTIONS TO CLERK
14 16 Plaintiff Michael Barkarri Foster alleges his jailors at Pelican Bay State Prison used 17 excessive force against him in violation of the Eighth Amendment. His first amended 42 18 U.S.C. § 1983 complaint containing these allegations is now before the Court for review 19 pursuant to 28 U.S.C. § 1915A(a). 20 Foster has stated cognizable Eighth Amendment claims against various Pelican Bay 21 correctional officers. The Court directs defendants to file in response to the first amended 22 complaint a dispositive motion, or a notice regarding such motion, on or before March 6, 23 2023. 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 be liberally construed. 4 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 6 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 8 plausibility when the plaintiff pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 10 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 11 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 12 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 13 (9th Cir. 1994). 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. See West v. Atkins, 487 U.S. 42, 48 (1988). 18 B. Legal Claims 19 Foster’s original complaint was dismissed with leave to amend because he named 20 many defendants but provided specific factual allegations against only one. (Order 21 Dismissing Complaint, Dkt. No. 9 at 2.) In his first amended complaint, Foster alleges 22 that in February 2021 prison guards at Pelican Bay State Prison battered and stabbed him 23 in violation of the Eighth Amendment. (First Am. Compl., Dkt. No. 10 at 5.) When 24 liberally construed, Foster has stated Eighth Amendment claims against correctional 25 officers Sergeant Puente; L. Sullenger; D. Eades; C. Crosby; M. Shaffer; and B. Tubbs. 27 For the foregoing reasons, the Court orders as follows: 1 all attachments thereto, on defendants Sergeant Puente; L. Sullenger; D. Eades; C. Crosby; 2 M. Shaffer; and B. Tubbs, all correctional officers at Pelican Bay State Prison, and orders 3 these defendants to respond to the cognizable claims raised in the complaint. 4 2. Service on these defendants shall proceed under the California Department 5 of Corrections and Rehabilitation’s e-service program for civil rights cases from prisoners 6 in CDCR custody. In accordance with the program, the Clerk is directed to serve on 7 CDCR via email the following documents: the first amended complaint (Docket No. 10) 8 and its attachments; this order; a CDCR Report of E-Service Waiver form; and a 9 summons. The Clerk also shall serve a copy of this order on the plaintiff. 10 3. No later than 40 days after service of this order via email on CDCR, CDCR 11 shall provide the court a completed CDCR Report of E-Service Waiver advising the court 12 which defendant(s) listed in this order will be waiving service of process without the need 13 for service by the United States Marshal Service (USMS) and which defendant(s) decline 14 to waive service or could not be reached. CDCR also shall provide a copy of the CDCR 15 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 16 days, shall file with the court a waiver of service of process for the defendant(s) who are 17 waiving service. 18 4. Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall 19 prepare for each defendant who has not waived service according to the CDCR Report of 20 E-Service Waiver a USM-205 Form. The Clerk shall provide to the USMS the completed 21 USM-205 forms and copies of this order, the summons and the operative complaint for 22 service upon each defendant who has not waived service. 23 5. On or before March 6, 2023, defendants shall file a motion for summary 24 judgment or other dispositive motion with respect to the claim(s) in the complaint found to 25 be cognizable above. 26 a. If defendants elect to file a motion to dismiss on the grounds plaintiff 27 failed to exhaust his available administrative remedies as required by 42 U.S.C. 1 Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). 2 b. Any motion for summary judgment shall be supported by adequate 3 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 4 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 5 qualified immunity found, if material facts are in dispute. If any defendant is of the 6 opinion that this case cannot be resolved by summary judgment, he shall so inform the 7 Court prior to the date the summary judgment motion is due. 8 6. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 9 and served on defendants no later than forty-five (45) days from the date defendants’ 10 motion is filed. 11 7. Defendants shall file a reply brief no later than fifteen (15) days after 12 plaintiff’s opposition is filed. 13 8. 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 9. 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 10. 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 Plaintiff is reminded that state prisoners may review all non-confidential material in 22 their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 23 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 24 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. 25 Requests to review these files or for copies of materials in them must be made directly to 26 prison officials, not to the court. 27 Plaintiff may also use any applicable jail procedures to request copies of (or the 1 officials that are relevant to the claims found cognizable in this order. Such requests must 2 be made directly to jail officials, not to the court. 3 11. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 4 Court informed of any change of address and must comply with the Court’s orders in a 5 timely fashion. Failure to do so may result in the dismissal of this action for failure to 6 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 7 12. Extensions of time must be filed no later than the deadline sought to be 8 extended and must be accompanied by a showing of good cause. 9 13. A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be 10 given “notice of what is required of them in order to oppose” summary judgment motions 11 at the time of filing of the motions, rather than when the court orders service of process or 12 otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 13 2012). Defendants shall provide the following notice to plaintiff when he files and serves 14 any motion for summary judgment:
15 The defendants have made a motion for summary judgment by which they 16 seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your 17 case.
18 Rule 56 tells you what you must do in order to oppose a motion for summary 19 judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact — that is, if there is no real dispute about any 20 fact that would affect the result of your case, the party who asked for 21 summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary 22 judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, 23 you must set out specific facts in declarations, depositions, answers to 24 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and documents and 25 show that there is a genuine issue of material fact for trial. If you do not 26 submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will 27 be dismissed and there will be no trial. 1 14. The Clerk shall modify the docket to show that the only defendants in this 2 || action are Sergeant Puente; L. Sullenger; D. Eades; C. Crosby; M. Shaffer; and B. Tubbs. 3 || All other persons are TERMINATED as defendants in this action. 5 Dated: December 7, 2022 “VQe ly ® 6 LLIAM H. ORRICK 7 United States District Judge 8 9 10 11 qa 12
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