1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JIMMY LEE HOUSTON, Case No. 22-cv-02475-JSW
8 Plaintiff, ORDER OF SERVICE v. 9
10 S. GUTIERREZ, et al., Defendants. 11
12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 14 U.S.C. § 1983 against prison officials for violating his constitutional rights at Salinas Valley State 15 Prison. Leave to proceed in forma pauperis is granted in a separate order. For the reasons 16 discussed below, the complaint is ordered served on Defendants. 17 ANALYSIS 18 A. STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 22 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 27 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 1 which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 2 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 3 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 4 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 5 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 6 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 7 must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 9 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 10 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 11 487 U.S. 42, 48 (1988). 12 B. LEGAL CLAIMS 13 When liberally construed, Plaintiff’s allegations that Defendants S. Gutierrez, M. Rangel, 14 and L. Maciel used and/or failed to intercede in the use of excessive force against him state a 15 cognizable claim for the violation of his Eighth Amendment rights. Plaintiff also alleges that 16 “Defendant(s) did not respond to his administrative grievances in retaliation for his filing of prior 17 grievances, which he claims amounted to a violation of First Amendment rights. Plaintiff does not 18 alleges which grievances went unanswered, who failed to answer them, when they were not 19 answered, or --- critically --- any facts showing that the failure to answer them was because of his 20 prior grievances, as opposed to some other reason. Therefore, Plaintiff has failed to state a 21 cognizable First Amendment claim. 22 CONCLUSION For the reasons set out above, 23 1. Plaintiff’s retaliation claim is DISMISSED. His Eighth Amendment claim is, when 24 liberally construed, cognizable. 25 2. Defendants S. Gutierrez, M. Rangel, and L. Maciel shall be served at Salinas Valley 26 State Prison. 27 Service shall proceed under the California Department of Corrections and Rehabilitation’s 1 (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. In accordance 2 with the program, the clerk is directed to serve on CDCR via email the following documents: the 3 Complaint, this Order, a CDCR Report of E-Service Waiver form, and a summons. The clerk also 4 shall serve a copy of this order on the plaintiff. 5 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 6 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 7 listed in this order will be waiving service of process without the need for service by the United 8 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 9 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 10 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 11 service of process for the defendant(s) who are waiving service. 12 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 13 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 14 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 15 of this order, the summons, and the operative complaint for service upon each defendant who has 16 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 17 Service Waiver. 18 3. The Defendants shall file an answer in accordance with the Federal Rules of Civil 19 Procedure. 20 4. In order to expedite the resolution of this case: 21 a. No later than 91 days from the date this order is filed, the remaining defendants, 22 including those who have been ordered served above, shall file a motion for summary judgment or 23 other dispositive motion. If defendants are of the opinion that this case cannot be resolved by 24 summary judgment, they shall so inform the court prior to the date the summary judgment motion 25 is due. All papers filed with the court shall be promptly served on the plaintiff. 26 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 27 court and served upon defendants no later than 28 days from the date of service of the motion. 1 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. 2 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 3 c. Defendants shall file a reply brief no later than 14 days after the date of service 4 of the opposition. 5 d. The motion shall be deemed submitted as of the date the reply brief is due. No 6 hearing will be held on the motion unless the court so orders at a later date. 7 e. Along with his motion, defendants shall file proof that they served plaintiff the 8 Rand warning at the same time they served him with their motion. Failure to do so will result in 9 the summary dismissal of their motion. 10 5. All communications by the plaintiff with the court must be served on defendants, or 11 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 12 defendants or their counsel. 13 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 14 further court order under
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JIMMY LEE HOUSTON, Case No. 22-cv-02475-JSW
8 Plaintiff, ORDER OF SERVICE v. 9
10 S. GUTIERREZ, et al., Defendants. 11
12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 14 U.S.C. § 1983 against prison officials for violating his constitutional rights at Salinas Valley State 15 Prison. Leave to proceed in forma pauperis is granted in a separate order. For the reasons 16 discussed below, the complaint is ordered served on Defendants. 17 ANALYSIS 18 A. STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 21 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 22 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 27 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 1 which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 2 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 3 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 4 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 5 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 6 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 7 must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 9 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 10 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 11 487 U.S. 42, 48 (1988). 12 B. LEGAL CLAIMS 13 When liberally construed, Plaintiff’s allegations that Defendants S. Gutierrez, M. Rangel, 14 and L. Maciel used and/or failed to intercede in the use of excessive force against him state a 15 cognizable claim for the violation of his Eighth Amendment rights. Plaintiff also alleges that 16 “Defendant(s) did not respond to his administrative grievances in retaliation for his filing of prior 17 grievances, which he claims amounted to a violation of First Amendment rights. Plaintiff does not 18 alleges which grievances went unanswered, who failed to answer them, when they were not 19 answered, or --- critically --- any facts showing that the failure to answer them was because of his 20 prior grievances, as opposed to some other reason. Therefore, Plaintiff has failed to state a 21 cognizable First Amendment claim. 22 CONCLUSION For the reasons set out above, 23 1. Plaintiff’s retaliation claim is DISMISSED. His Eighth Amendment claim is, when 24 liberally construed, cognizable. 25 2. Defendants S. Gutierrez, M. Rangel, and L. Maciel shall be served at Salinas Valley 26 State Prison. 27 Service shall proceed under the California Department of Corrections and Rehabilitation’s 1 (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. In accordance 2 with the program, the clerk is directed to serve on CDCR via email the following documents: the 3 Complaint, this Order, a CDCR Report of E-Service Waiver form, and a summons. The clerk also 4 shall serve a copy of this order on the plaintiff. 5 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 6 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 7 listed in this order will be waiving service of process without the need for service by the United 8 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 9 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 10 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 11 service of process for the defendant(s) who are waiving service. 12 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 13 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 14 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 15 of this order, the summons, and the operative complaint for service upon each defendant who has 16 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 17 Service Waiver. 18 3. The Defendants shall file an answer in accordance with the Federal Rules of Civil 19 Procedure. 20 4. In order to expedite the resolution of this case: 21 a. No later than 91 days from the date this order is filed, the remaining defendants, 22 including those who have been ordered served above, shall file a motion for summary judgment or 23 other dispositive motion. If defendants are of the opinion that this case cannot be resolved by 24 summary judgment, they shall so inform the court prior to the date the summary judgment motion 25 is due. All papers filed with the court shall be promptly served on the plaintiff. 26 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 27 court and served upon defendants no later than 28 days from the date of service of the motion. 1 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. 2 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 3 c. Defendants shall file a reply brief no later than 14 days after the date of service 4 of the opposition. 5 d. The motion shall be deemed submitted as of the date the reply brief is due. No 6 hearing will be held on the motion unless the court so orders at a later date. 7 e. Along with his motion, defendants shall file proof that they served plaintiff the 8 Rand warning at the same time they served him with their motion. Failure to do so will result in 9 the summary dismissal of their motion. 10 5. All communications by the plaintiff with the court must be served on defendants, or 11 defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 12 defendants or their counsel. 13 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 14 further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required 15 before the parties may conduct discovery. 16 Plaintiff is reminded that state prisoners inmates may review all non-confidential material 17 in their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 18 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 19 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. Requests to 20 review these files or for copies of materials in them must be made directly to prison officials, not 21 to the court. 22 // 23 //
24 25 26 27 1 7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 2 || informed of any change of address and must comply with the court's orders in a timely fashion. 3 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 4 Federal Rule of Civil Procedure 41(b). 5 IT IS SO ORDERED. 6 Dated: June 3, 2022
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1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If Defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in Defendant's declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 18 19 20 21 22 23 24 25 26 27