1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL E. JACQUES, Case No. 24-cv-03189-JSW
8 Plaintiff, ORDER OF PARTIAL DISMISSAL 9 v. AND OF SERVICE
10 Y. DELGADO, Defendant. 11
12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 14 U.S.C. § 1983 against an official at Salinas Valley State Prison. She is granted leave to proceed in 15 forma pauperis in a separate order. For the reasons discussed below, the Eighth Amendment 16 claim is DISMISSED, and the complaint is ordered served on Defendant based on Plaintiff’s First 17 Amendment retaliation claim. 18 ANALYSIS 19 A. STANDARD OF REVIEW 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 23 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 24 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 25 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 26 Cir. 1990). 27 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 1 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon 2 which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 3 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 4 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 5 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 6 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 7 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 8 must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 10 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 11 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 12 487 U.S. 42, 48 (1988). 13 B. LEGAL CLAIMS 14 When liberally construed, Plaintiff’s allegations state a cognizable claim against Defendant 15 Delgado for violating her First Amendment rights by retaliating against her for filing 16 administrative grievances. Plaintiff’s allegations that Defendant caused a delay in Plaintiff 17 receiving her medication does not, when liberally construed, state a cognizable claim for 18 deliberate indifference to her serious medical needs under the Eighth Amendment because 19 Plaintiff does not allege any harm was caused by the delay. Simmons v. G. Arnett, 47 F.4th 927, 20 933 (9th Cir. 2022) (holding that under deliberate indifference standard “harmless delays in 21 treatment are not enough to sustain an Eighth Amendment claim.”). 22 CONCLUSION For the reasons set out above, 23 1. Plaintiff’s Eighth Amendment claim is DISMISSED for failure to state a cognizable 24 claim for relief. Plaintiff’s First Amendment retaliation claim is, when liberally construed, 25 cognizable. 26 2. Defendant Correctional Officer Y. Delgado shall be served at Salinas Valley State 27 Prison. Service shall proceed under the California Department of Corrections and 1 Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. 2 In accordance with the program, the clerk is directed to serve on CDCR via email the following 3 documents: the Amended Complaint, this Order, a CDCR Report of E-Service Waiver form, and a 4 summons. The clerk also 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. Defendant shall file an answer in accordance with the Federal Rules of Civil Procedure. 19 4. In order to expedite the resolution of this case: 20 a. No later than 91 days from the date this order is filed Defendant shall file a 21 motion for summary judgment or other dispositive motion. If defendant is of the opinion that this 22 case cannot be resolved by summary judgment, they shall so inform the court prior to the date the 23 summary judgment motion is due. All papers filed with the court shall be promptly served on the 24 plaintiff. 25 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 26 court and served upon defendant no later than 28 days from the date of service of the motion. 27 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to her 1 || Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 2 c. Defendant shall file a reply brief no later than 14 days after the date of service 3 of the opposition. 4 d. The motion shall be deemed submitted as of the date the reply brief is due. No 5 || hearing will be held on the motion unless the court so orders at a later date. 6 e. Along with his motion, defendant shall file proof that they served plaintiff the 7 || Rand warning at the same time they served her with their motion. Failure to do so will result in 8 the summary dismissal of their motion. 9 4. All communications by the plaintiff with the court must be served on defendant, or 10 || defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 11 defendants or their counsel. 12 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL E. JACQUES, Case No. 24-cv-03189-JSW
8 Plaintiff, ORDER OF PARTIAL DISMISSAL 9 v. AND OF SERVICE
10 Y. DELGADO, Defendant. 11
12 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 14 U.S.C. § 1983 against an official at Salinas Valley State Prison. She is granted leave to proceed in 15 forma pauperis in a separate order. For the reasons discussed below, the Eighth Amendment 16 claim is DISMISSED, and the complaint is ordered served on Defendant based on Plaintiff’s First 17 Amendment retaliation claim. 18 ANALYSIS 19 A. STANDARD OF REVIEW 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 23 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 24 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 25 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 26 Cir. 1990). 27 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the 1 statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon 2 which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although 3 in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 4 obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and 5 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 6 Factual allegations must be enough to raise a right to relief above the speculative level." Bell 7 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint 8 must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. 9 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 10 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 11 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 12 487 U.S. 42, 48 (1988). 13 B. LEGAL CLAIMS 14 When liberally construed, Plaintiff’s allegations state a cognizable claim against Defendant 15 Delgado for violating her First Amendment rights by retaliating against her for filing 16 administrative grievances. Plaintiff’s allegations that Defendant caused a delay in Plaintiff 17 receiving her medication does not, when liberally construed, state a cognizable claim for 18 deliberate indifference to her serious medical needs under the Eighth Amendment because 19 Plaintiff does not allege any harm was caused by the delay. Simmons v. G. Arnett, 47 F.4th 927, 20 933 (9th Cir. 2022) (holding that under deliberate indifference standard “harmless delays in 21 treatment are not enough to sustain an Eighth Amendment claim.”). 22 CONCLUSION For the reasons set out above, 23 1. Plaintiff’s Eighth Amendment claim is DISMISSED for failure to state a cognizable 24 claim for relief. Plaintiff’s First Amendment retaliation claim is, when liberally construed, 25 cognizable. 26 2. Defendant Correctional Officer Y. Delgado shall be served at Salinas Valley State 27 Prison. Service shall proceed under the California Department of Corrections and 1 Rehabilitation’s (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. 2 In accordance with the program, the clerk is directed to serve on CDCR via email the following 3 documents: the Amended Complaint, this Order, a CDCR Report of E-Service Waiver form, and a 4 summons. The clerk also 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. Defendant shall file an answer in accordance with the Federal Rules of Civil Procedure. 19 4. In order to expedite the resolution of this case: 20 a. No later than 91 days from the date this order is filed Defendant shall file a 21 motion for summary judgment or other dispositive motion. If defendant is of the opinion that this 22 case cannot be resolved by summary judgment, they shall so inform the court prior to the date the 23 summary judgment motion is due. All papers filed with the court shall be promptly served on the 24 plaintiff. 25 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 26 court and served upon defendant no later than 28 days from the date of service of the motion. 27 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to her 1 || Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 2 c. Defendant shall file a reply brief no later than 14 days after the date of service 3 of the opposition. 4 d. The motion shall be deemed submitted as of the date the reply brief is due. No 5 || hearing will be held on the motion unless the court so orders at a later date. 6 e. Along with his motion, defendant shall file proof that they served plaintiff the 7 || Rand warning at the same time they served her with their motion. Failure to do so will result in 8 the summary dismissal of their motion. 9 4. All communications by the plaintiff with the court must be served on defendant, or 10 || defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 11 defendants or their counsel. 12 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 5 13 further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required 14 || before the parties may conduct discovery. 3 15 Plaintiff is reminded that state prisoners inmates may review all non-confidential material 16 || in their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 3 17 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 18 || Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. Requests to 19 || review these files or for copies of materials in them must be made directly to prison officials, not 20 || to the court. 21 6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 22 || informed of any change of address and must comply with the court's orders in a timely fashion. 23 || Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 24 Federal Rule of Civil Procedure 41(b). 25 IT IS SO ORDERED. 26 || Dated: July 1, 2024
J .WHITE 28 United States District Judge
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