Johnson v. Rosalez

• Court: District Court, N.D. California
• Decided: July 22, 2022
• Docket: 4:22-cv-04091
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL DAVID JOHNSON, Case No. 22-cv-04091-JSW

8 Plaintiff, ORDER OF SERVICE AND OF 9 v. PARTIAL DISMISSAL WITH LEAVE TO AMEND 10 R. ROSALEZ, 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 Defendant A. Cuevas. The claims against the 17 remaining Defendants are DISMISSED with leave to amend. 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 that Defendant Sergeant A. Cuevas 15 sexually harassed him and wrote him up for rules violations in retaliation for Plaintiff’s prior 16 lawsuits states a cognizable claim for relief against Cuevas for violating his First Amendment 17 rights. 18 Plaintiff also alleges that the prison officials at San Quentin have not taken adequate 19 precautions to stop the spread of COVID within the prison. He names a number of other 20 Defendants, but he does not allege any conduct or omissions by them. As a result, he has not 21 made any plausible allegation that they caused these unsafe conditions or any other violation of 22 Plaintiff’s constitutional rights. Consequently, the claims against them will be dismissed. If 23 Plaintiff wishes to proceed with claims against these Defendants, he may file an amended 24 complaint in which he cures this problem in accordance with the provisions set forth below. 25 CONCLUSION For the reasons set out above, 26 1. Plaintiff’s claims against Defendants R. Rosalez, S. Stribling, L. Peters, D. Campbell, 27 A. Maxwell, J. Arnold, and R. Broomfield are DISMISSED with leave to amend. Plaintiff may 1 file an amended complaint within 28 days of the date this order is filed. The amended 2 complaint must include the caption and civil case number used in this order (No. C 22-4091 JSW 3 (PR)) and the words “COURT-ORDERED FIRST AMENDED COMPLAINT” on the first page. 4 Because an amended complaint completely replaces the original complaint, see Ferdik v. Bonzelet, 5 963 F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate material from the original by 6 reference; he must include in his amended complaint all the claims he wishes to pursue, including 7 the claim against Cuevas that is found cognizable in this order. Failure to amend within the 8 designated time and in accordance with this order will result in the dismissal of the claims against these defendants. 9 2. Defendant A. Cuevas shall be served at San Quentin State Prison. 10 Service shall proceed under the California Department of Corrections and Rehabilitation’s 11 (CDCR) e-service program for civil rights cases from prisoners in CDCR custody. In accordance 12 with the program, the clerk is directed to serve on CDCR via email the following documents: the 13 Complaint, this Order, a CDCR Report of E-Service Waiver form, and a summons. The clerk also 14 shall serve a copy of this order on the plaintiff. 15 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 16 the court a completed CDCR Report of E-Service Waiver advising the court which defendant(s) 17 listed in this order will be waiving service of process without the need for service by the United 18 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 19 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 20 California Attorney General’s Office which, within 21 days, shall file with the court a waiver of 21 service of process for the defendant(s) who are waiving service. 22 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 23 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 24 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 forms and copies 25 of this order, the summons, and the operative complaint for service upon each defendant who has 26 not waived service. The clerk also shall provide to the USMS a copy of the CDCR Report of E- 27 1 3. Defendant shall file an answer in accordance with the Federal Rules of Civil Procedure. 2 4. In order to expedite the resolution of this case: 3 a. No later than 91 days from the date this order is filed, the remaining defendant, 4 including those who have been ordered served above, shall file a motion for summary judgment or 5 other dispositive motion. If defendant is of the opinion that this case cannot be resolved by 6 summary judgment, they shall so inform the court prior to the date the summary judgment motion 7 is due. All papers filed with the court shall be promptly served on the plaintiff. 8 b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the 9 court and served upon defendants no later than 28 days from the date of service of the motion. 10 Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him 11 pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. 12 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 13 c. Defendant shall file a reply brief no later than 14 days after the date of service 14 of the opposition. 15 d. The motion shall be deemed submitted as of the date the reply brief is due. No 16 hearing will be held on the motion unless the court so orders at a later date. 17 e. Along with his motion, defendants shall file proof that they served plaintiff the 18 Rand warning at the same time they served him with their motion. Failure to do so will result in 19 the summary dismissal of their motion. 20 5. All communications by the plaintiff with the court must be served on defendant, or 21 defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 22 defendant or their counsel. 23 6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 24 further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is required 25 before the parties may conduct discovery. 26 Plaintiff is reminded that state prisoners inmates may review all non-confidential material 27 in their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 1 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. Requests to 2 || review these files or for copies of materials in them must be made directly to prison officials, not 3 to the court. 4 7. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 5 informed of any change of address and must comply with the court's orders in a timely fashion. 6 || Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 7 Federal Rule of Civil Procedure 41(b). 8 IT IS SO ORDERED. 9 || Dated: July 22, 2022 10 } f ite 11 MOAT JEFFRIEY S. WHITE 12 Ani Sites istrict Judge

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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