1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 9 IN RE CIM-SQ TRANSFER CASES Case No. 5:20-cv-06326-EJD
10 ORDER OF SERVICE; DENYING 11 This Document Relates To: MOTION FOR APPOINTMENT OF COUNSEL 26-cv-01662-EJD; Rougeau v. Broomfield et 12
al. 13
14 INTRODUCTION 15 Plaintiff, a California prisoner, filed a pro se civil rights action. Plaintiff alleged that 16 defendants violated his constitutional rights by transferring over 100 prisoners, some of whom 17 were infected with COVID-19, from the California Institution for Men (CIM) to San Quentin State 18 Prison (SQSP)1 in 2020. The case is now before the Court for screening pursuant to 28 U.S.C. § 19 1915A(a), and service of the complaint on defendants is ordered. Plaintiff will be granted leave to 20 proceed in forma pauperis by separate order. 21 This case has been consolidated with cases in this district related to the 2020 prisoner 22 transfer and related to the first case filed, No. 5:20-cv-06326-EJD, which now has the caption “In 23 Re CIM-SQ Transfer Cases.” Pro se prisoner cases that are part of the consolidated matter are 24 stayed except for the purposes of service. Service shall therefore proceed in plaintiff’s case as 25 ordered below, but the case will remain stayed for all other purposes. The docket for Case No. 25- 26 cv-07879-EJD and all other individual dockets have been closed. If plaintiff wishes to file any 27 1 motions, he must file them in Case No. 5:20-cv-06326-EJD and include his original case number, 2 No. 25-cv-07879-EJD, on the left side of the heading. 3 STANDARD OF REVIEW 4 Federal courts must engage in a preliminary screening of cases in which prisoners seek 5 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 6 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 7 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 8 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 9 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 10 F.2d 696, 699 (9th Cir. 1990). 11 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 12 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 13 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 14 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 15 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 16 formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must 17 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 18 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 19 state a claim for relief that is plausible on its face.” Id. at 1974. 20 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 21 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 22 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 23 42, 48 (1988). 24 If a court dismisses a complaint for failure to state a claim, it should “freely give 25 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to 26 deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, 27 repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the 1 opposing party by virtue of allowance of the amendment, [and] futility of amendment.” 2 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 3 LEGAL CLAIMS 4 Plaintiff names as defendants former SQSP warden Ronald Broomfield and former 5 California Department of Corrections and Rehabilitation (CDCR) directors Ralph Diaz and 6 Katherine Allison. He alleges defendants violated his constitutional rights by transferring more 7 than 100 inmates from CIM to SQSP, causing him to contract COVID-19. He seeks damages. 8 Liberally construed, he has stated a cognizable Eighth Amendment claims against 9 defendants. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (prison official is deliberately 10 indifferent if he or she knows that prisoner faces substantial risk of serious harm and disregards 11 that risk by failing to take reasonable steps to abate it). 12 MOTION FOR APPOINTMENT OF COUNSEL 13 Plaintiff has filed a motion for appointment of counsel. Dkt. No. 423 in Case No. 20-cv- 14 06326. “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 15 965, 970 (9th Cir. 2009). “However, a court may under ‘exceptional circumstances’ appoint 16 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Id. (citing Agyeman v. 17 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. 18 Agyeman, 545 U.S. 1128 (2005)). A finding of “exceptional circumstances” requires an 19 evaluation of the likelihood of the plaintiff’s success on the merits and of the plaintiff’s ability to 20 articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman, 21 390 F.3d at 1103. Both factors must be viewed together before reaching a decision on a request 22 for counsel under § 1915. See id. 23 Plaintiff may be likely to succeed on the merits of some of his claims, but he is able to 24 articulate his claims adequately at the present stage of the case, and his case is currently stayed for 25 all purposes except service. His motion is denied without prejudice to the Court’s later sua sponte 26 appointment of counsel, should the Court determine the exceptional circumstances are present to 27 warrant it. 1 CONCLUSION 2 1. The Court orders that service on the following defendants shall proceed under the 3 California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for civil 4 rights cases from prisoners in the CDCR’s custody: 5 a. Ronald Broomfield 6 b. Ralph Diaz 7 c. Katherine Allison 8 In accordance with the program, the clerk is directed to serve on the CDCR via email the 9 following documents: the operative complaint (Dkt. No. 1 in 26-cv-01662), this Order of Service, 10 a CDCR Report of E-Service Waiver form, and a summons. The clerk also shall serve a copy of 11 this order on the plaintiff.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 9 IN RE CIM-SQ TRANSFER CASES Case No. 5:20-cv-06326-EJD
10 ORDER OF SERVICE; DENYING 11 This Document Relates To: MOTION FOR APPOINTMENT OF COUNSEL 26-cv-01662-EJD; Rougeau v. Broomfield et 12
al. 13
14 INTRODUCTION 15 Plaintiff, a California prisoner, filed a pro se civil rights action. Plaintiff alleged that 16 defendants violated his constitutional rights by transferring over 100 prisoners, some of whom 17 were infected with COVID-19, from the California Institution for Men (CIM) to San Quentin State 18 Prison (SQSP)1 in 2020. The case is now before the Court for screening pursuant to 28 U.S.C. § 19 1915A(a), and service of the complaint on defendants is ordered. Plaintiff will be granted leave to 20 proceed in forma pauperis by separate order. 21 This case has been consolidated with cases in this district related to the 2020 prisoner 22 transfer and related to the first case filed, No. 5:20-cv-06326-EJD, which now has the caption “In 23 Re CIM-SQ Transfer Cases.” Pro se prisoner cases that are part of the consolidated matter are 24 stayed except for the purposes of service. Service shall therefore proceed in plaintiff’s case as 25 ordered below, but the case will remain stayed for all other purposes. The docket for Case No. 25- 26 cv-07879-EJD and all other individual dockets have been closed. If plaintiff wishes to file any 27 1 motions, he must file them in Case No. 5:20-cv-06326-EJD and include his original case number, 2 No. 25-cv-07879-EJD, on the left side of the heading. 3 STANDARD OF REVIEW 4 Federal courts must engage in a preliminary screening of cases in which prisoners seek 5 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 6 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 7 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 8 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 9 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 10 F.2d 696, 699 (9th Cir. 1990). 11 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 12 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 13 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 14 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 15 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 16 formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must 17 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 18 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 19 state a claim for relief that is plausible on its face.” Id. at 1974. 20 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 21 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 22 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 23 42, 48 (1988). 24 If a court dismisses a complaint for failure to state a claim, it should “freely give 25 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has discretion to 26 deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, 27 repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the 1 opposing party by virtue of allowance of the amendment, [and] futility of amendment.” 2 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). 3 LEGAL CLAIMS 4 Plaintiff names as defendants former SQSP warden Ronald Broomfield and former 5 California Department of Corrections and Rehabilitation (CDCR) directors Ralph Diaz and 6 Katherine Allison. He alleges defendants violated his constitutional rights by transferring more 7 than 100 inmates from CIM to SQSP, causing him to contract COVID-19. He seeks damages. 8 Liberally construed, he has stated a cognizable Eighth Amendment claims against 9 defendants. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (prison official is deliberately 10 indifferent if he or she knows that prisoner faces substantial risk of serious harm and disregards 11 that risk by failing to take reasonable steps to abate it). 12 MOTION FOR APPOINTMENT OF COUNSEL 13 Plaintiff has filed a motion for appointment of counsel. Dkt. No. 423 in Case No. 20-cv- 14 06326. “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 15 965, 970 (9th Cir. 2009). “However, a court may under ‘exceptional circumstances’ appoint 16 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Id. (citing Agyeman v. 17 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. 18 Agyeman, 545 U.S. 1128 (2005)). A finding of “exceptional circumstances” requires an 19 evaluation of the likelihood of the plaintiff’s success on the merits and of the plaintiff’s ability to 20 articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman, 21 390 F.3d at 1103. Both factors must be viewed together before reaching a decision on a request 22 for counsel under § 1915. See id. 23 Plaintiff may be likely to succeed on the merits of some of his claims, but he is able to 24 articulate his claims adequately at the present stage of the case, and his case is currently stayed for 25 all purposes except service. His motion is denied without prejudice to the Court’s later sua sponte 26 appointment of counsel, should the Court determine the exceptional circumstances are present to 27 warrant it. 1 CONCLUSION 2 1. The Court orders that service on the following defendants shall proceed under the 3 California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program for civil 4 rights cases from prisoners in the CDCR’s custody: 5 a. Ronald Broomfield 6 b. Ralph Diaz 7 c. Katherine Allison 8 In accordance with the program, the clerk is directed to serve on the CDCR via email the 9 following documents: the operative complaint (Dkt. No. 1 in 26-cv-01662), this Order of Service, 10 a CDCR Report of E-Service Waiver form, and a summons. The clerk also shall serve a copy of 11 this order on the plaintiff. 12 No later than 40 days after service of this order via email on the CDCR, the 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 service by 15 the USMS and which defendant(s) decline to waive service or could not be reached. The CDCR 16 also shall provide a copy of the CDCR Report of E-Service Waiver to the California Attorney 17 General’s Office which, within 21 days, shall file with the Court a waiver of service of process for 18 the defendant(s) who are waiving service. 19 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 20 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 21 USM-285 Form. The clerk shall provide to the USMS the completed USM-285 forms and copies 22 of this order, the summons and the operative complaint for service upon each defendant who has 23 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 24 Service Waiver. 25 2. All 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 complaint. 27 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on ] cost of such service unless good cause can be shown for their failure to sign and return the waiver 2 || form. 3 3. All communications by plaintiff with the Court must be served on defendants’ 4 || counsel by mailing a true copy of the document to defendants’ counsel. The Court may disregard 5 any document which a party files but fails to send a copy of to his opponent. Until defendants’ 6 || counsel has been designated, plaintiff may mail a true copy of the document directly to 7 || defendants, but once defendants are represented by counsel, all documents must be mailed to 8 counsel rather than directly to defendants. 9 4. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 10 || Court informed of any change of address and must comply with the Court’s orders in a timely 11 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 12 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 13 || pending case every time he is moved to a new facility. 14 5. Any motion for an extension of time must be filed no later than the deadline sought 3 15 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that a 16 || he must include the case name and case number for this case on any document he submits to the 2 17 || Court for consideration in this case. Z 18 6. The case will remain stayed for all purposes other than service of the complaint on 19 || defendants. 20 7. This Order terminates Docket No. 423 in Case No. 20-cv-06326. 21 IT IS SO ORDERED. 22 || Dated: May 11, 2026 23 24 EDWARD J. DAVILA 25 United States District Judge 26 27 28