1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TEVIN LEE HARRIS, 11 Case No. 22-01568 BLF (PR) Plaintiff, 12 AMENDED ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE v. 13 OPPOSITION TO PLAINTIFF’S
MOTION FOR PRELIMINARY
14 INJUNCTION; DIRECTING B. RAMIREZ, DEFENDANT TO FILE DISPOSITIVE 15 MOTION OR NOTICE REGARDING Defendant. SUCH MOTION; INSTRUCTIONS TO 16 CLERK
17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against a correctional officer at Salinas Valley State Prison (“SVSP”).1 Dkt. 20 No. 1. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a 21 separate order. Dkt. No. 2. Plaintiff also filed an “emergent request and urgent request for 22 judicial and or request for injunction relief,” and a supplemental thereto. Dkt. Nos. 6, 9. 23 The Court construed the motion as one for a preliminary injunction under Rule 65(a) 24 and/or temporary restraining order (“TRO”) under Rule 65(b) of the Federal Rules of Civil 25 Procedure. Dkt. No. 10. The Court denied the TRO, and now orders briefing on the 26 request for a preliminary injunction as set forth below. Id.; see infra at 4. 27 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 Plaintiff claims that on December 21, 2021, Defendant Correctional Officer B. 16 Ramirez used excessive force on him by spraying him twice with pepper spray, without 17 provocation. Dkt. No. 1 at 2. Plaintiff claims Defendant Ramirez acted in order to make 18 Plaintiff regret filing inmate grievances against other prison officers, and to prevent him 19 from complaining about how officers have been targeting and antagonizing him while 20 depriving him of his rights. Id. at 3. Liberally construed, Plaintiff’s allegations state 21 cognizable claims of excessive force and retaliation. See Hudson v. McMillian, 503 U.S. 22 1, 7-8 (1992); see Perry v. Sindermann, 408 U.S. 593, 597 (1972). 23 Plaintiff filed an emergency motion for a preliminary injunction, Dkt. No. 6, and a 24 supplemental thereto, Dkt. No. 9. Plaintiff claims Defendant Ramirez sprayed him again 25 with pepper spray on March 16, 2022, and seeks court intervention to protect him from 26 Defendant. Dkt. No. 6 at 1-2. Defendant Ramirez shall file a response to Plaintiff’s 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. The following defendant shall be served at SVSP: 4 a. B. Ramirez, Correctional Officer 5 Service on the listed defendant(s) shall proceed under the California Department of 6 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 7 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 8 on CDCR via email the following documents: the operative complaint, and any 9 attachments thereto, Dkt. No.1, this order of service, a CDCR Report of E-Service Waiver 10 form, and a summons. The clerk also shall serve a copy of plaintiff’s motion for a 11 preliminary injunction and supplemental thereto, Dkt. Nos. 6, 9. 12 No later than 40 days after service of this order via email on CDCR, CDCR shall 13 provide the court a completed CDCR Report of E-Service Waiver advising the court which 14 defendant(s) listed in this order will be waiving service of process without the need for 15 service by the United States Marshal Service (USMS) and which defendant(s) decline to 16 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 17 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 18 days, shall file with the court a waiver of service of process for the defendant(s) who are 19 waiving service. 20 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 21 each defendant who has not waived service according to the CDCR Report of E-Service 22 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 23 forms and copies of this order, the summons and the operative complaint for service upon 24 each defendant who has not waived service. The clerk also shall provide to the USMS a 25 copy of the CDCR Report of E-Service Waiver. 26 2. No later than thirty-five (35) days from the date the CDCR Report of E- 1 preliminary injunction and supplemental thereto. Dkt. Nos. 6, 9. Plaintiff’s reply shall 2 be filed no later than fourteen (14) days after Defendant’s opposition is filed. 3 3. In the same time in which to file an opposition to Plaintiff’s preliminary 4 injunction motion, Defendant may file a motion to dismiss under the Federal Rules of Civil 5 Procedure. 6 a. Plaintiff’s opposition to Defendant’s motion to dismiss shall be filed 7 with the Court and served on Defendants no later than twenty-eight (28) days from the 8 date Defendants’ motion is filed. 9 b. Defendants shall file a reply brief no later than fourteen (14) days 10 after Plaintiff’s opposition is filed. 11 4. If no motion to dismiss is filed, no later than ninety-one (91) days from the 12 date this order is filed, Defendants shall file a motion for summary judgment with respect 13 to the claims in the complaint found to be cognizable above. 14 a. Any motion for summary judgment shall be supported by adequate 15 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 16 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 17 qualified immunity found, if material facts are in dispute. If any Defendant is of the 18 opinion that this case cannot be resolved by summary judgment, he shall so inform the 19 Court prior to the date the summary judgment motion is due. 20 b. In the event Defendants file a motion for summary judgment, the 21 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 22 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 23 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 24 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 25 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 26 motion is filed. 1 || Celotex Corp. v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TEVIN LEE HARRIS, 11 Case No. 22-01568 BLF (PR) Plaintiff, 12 AMENDED ORDER OF SERVICE; DIRECTING DEFENDANT TO FILE v. 13 OPPOSITION TO PLAINTIFF’S
MOTION FOR PRELIMINARY
14 INJUNCTION; DIRECTING B. RAMIREZ, DEFENDANT TO FILE DISPOSITIVE 15 MOTION OR NOTICE REGARDING Defendant. SUCH MOTION; INSTRUCTIONS TO 16 CLERK
17 18 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against a correctional officer at Salinas Valley State Prison (“SVSP”).1 Dkt. 20 No. 1. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a 21 separate order. Dkt. No. 2. Plaintiff also filed an “emergent request and urgent request for 22 judicial and or request for injunction relief,” and a supplemental thereto. Dkt. Nos. 6, 9. 23 The Court construed the motion as one for a preliminary injunction under Rule 65(a) 24 and/or temporary restraining order (“TRO”) under Rule 65(b) of the Federal Rules of Civil 25 Procedure. Dkt. No. 10. The Court denied the TRO, and now orders briefing on the 26 request for a preliminary injunction as set forth below. Id.; see infra at 4. 27 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 Plaintiff claims that on December 21, 2021, Defendant Correctional Officer B. 16 Ramirez used excessive force on him by spraying him twice with pepper spray, without 17 provocation. Dkt. No. 1 at 2. Plaintiff claims Defendant Ramirez acted in order to make 18 Plaintiff regret filing inmate grievances against other prison officers, and to prevent him 19 from complaining about how officers have been targeting and antagonizing him while 20 depriving him of his rights. Id. at 3. Liberally construed, Plaintiff’s allegations state 21 cognizable claims of excessive force and retaliation. See Hudson v. McMillian, 503 U.S. 22 1, 7-8 (1992); see Perry v. Sindermann, 408 U.S. 593, 597 (1972). 23 Plaintiff filed an emergency motion for a preliminary injunction, Dkt. No. 6, and a 24 supplemental thereto, Dkt. No. 9. Plaintiff claims Defendant Ramirez sprayed him again 25 with pepper spray on March 16, 2022, and seeks court intervention to protect him from 26 Defendant. Dkt. No. 6 at 1-2. Defendant Ramirez shall file a response to Plaintiff’s 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. The following defendant shall be served at SVSP: 4 a. B. Ramirez, Correctional Officer 5 Service on the listed defendant(s) shall proceed under the California Department of 6 Corrections and Rehabilitation’s (CDCR) e-service program for civil rights cases from 7 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve 8 on CDCR via email the following documents: the operative complaint, and any 9 attachments thereto, Dkt. No.1, this order of service, a CDCR Report of E-Service Waiver 10 form, and a summons. The clerk also shall serve a copy of plaintiff’s motion for a 11 preliminary injunction and supplemental thereto, Dkt. Nos. 6, 9. 12 No later than 40 days after service of this order via email on CDCR, CDCR shall 13 provide the court a completed CDCR Report of E-Service Waiver advising the court which 14 defendant(s) listed in this order will be waiving service of process without the need for 15 service by the United States Marshal Service (USMS) and which defendant(s) decline to 16 waive service or could not be reached. CDCR also shall provide a copy of the CDCR 17 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 18 days, shall file with the court a waiver of service of process for the defendant(s) who are 19 waiving service. 20 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for 21 each defendant who has not waived service according to the CDCR Report of E-Service 22 Waiver a USM-205 Form. The clerk shall provide to the USMS the completed USM-205 23 forms and copies of this order, the summons and the operative complaint for service upon 24 each defendant who has not waived service. The clerk also shall provide to the USMS a 25 copy of the CDCR Report of E-Service Waiver. 26 2. No later than thirty-five (35) days from the date the CDCR Report of E- 1 preliminary injunction and supplemental thereto. Dkt. Nos. 6, 9. Plaintiff’s reply shall 2 be filed no later than fourteen (14) days after Defendant’s opposition is filed. 3 3. In the same time in which to file an opposition to Plaintiff’s preliminary 4 injunction motion, Defendant may file a motion to dismiss under the Federal Rules of Civil 5 Procedure. 6 a. Plaintiff’s opposition to Defendant’s motion to dismiss shall be filed 7 with the Court and served on Defendants no later than twenty-eight (28) days from the 8 date Defendants’ motion is filed. 9 b. Defendants shall file a reply brief no later than fourteen (14) days 10 after Plaintiff’s opposition is filed. 11 4. If no motion to dismiss is filed, no later than ninety-one (91) days from the 12 date this order is filed, Defendants shall file a motion for summary judgment with respect 13 to the claims in the complaint found to be cognizable above. 14 a. Any motion for summary judgment shall be supported by adequate 15 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 16 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 17 qualified immunity found, if material facts are in dispute. If any Defendant is of the 18 opinion that this case cannot be resolved by summary judgment, he shall so inform the 19 Court prior to the date the summary judgment motion is due. 20 b. In the event Defendants file a motion for summary judgment, the 21 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 22 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 23 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 24 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 25 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 26 motion is filed. 1 || Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 2 || must come forward with evidence showing triable issues of material fact on every essential 3 || element of his claim). Plaintiff is cautioned that failure to file an opposition to 4 || Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 5 || the granting of the motion, and granting of judgment against Plaintiff without a trial. See 6 || Ghazali vy. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 7 || F.3d 651, 653 (9th Cir. 1994). 8 6. Defendants shall file a reply brief no later than fourteen (14) days after 9 || Plaintiff's opposition is filed. 10 7. The motion shall be deemed submitted as of the date the reply brief is due. 11 || No hearing will be held on the motion unless the Court so orders at a later date. 2 8. All communications by the Plaintiff with the Court must be served on E 13 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true S 14 copy of the document to Defendants or Defendants’ counsel. 3 15 9. Discovery may be taken in accordance with the Federal Rules of Civil 16 || Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 5 17 || Rule 16-1 is required before the parties may conduct discovery. 5 18 10. ‘It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 19 || court informed of any change of address and must comply with the court’s orders in a 20 || timely fashion. Failure to do so may result in the dismissal of this action for failure to 21 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 2 11. Extensions of time must be filed no later than the deadline sought to be 23 || extended and must be accompanied by a showing of good cause. 24 IT IS SO ORDERED. 25 || Dated: _April 29, 2022 bade Lown homme) BETH LABSON FREEMAN 26 United States District Judge 27 |] □□□□□□□□□□□□□□□□□□□□□□□□ sveAMEND.