Keeton v. Salinas Valley State Prison

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TOMMY KEETON, Case No. 22-cv-03964-WHO (PR)

Plaintiff, 8 ORDER OF SERVICE;

v. 9 ORDER DIRECTING DEFENDANTS TO FILE A 10 STATE OF CALIFORNIA DEPT OF DISPOSITIVE MOTION OR CORRECTIONS SALINAS VALLEY NOTICE REGARDING SUCH 11 STATE PRISON, et al., MOTION;

Defendants. 12 INSTRUCTIONS TO CLERK 13 Dkt. Nos. 6, 8, 10, 12, 13, 19, 23, 26, 27 14 and 28

15 INTRODUCTION 16 This suit was removed from state court. Plaintiff Tommy Keeton alleges that 17 correctional officers violated his federal rights and committed tortious acts under state law. 18 His complaint, which I construe as filed under 42 U.S.C. § 1983, containing these 19 allegations is now before me for review pursuant to 28 U.S.C. § 1915A(a). 20 Keeton has stated cognizable claims against Salinas Valley State Prison correctional 21 officers T. Deslaurier Rixman, Juan Mora, and Jose Gil-Rojas. The Court directs 22 defendants Rixman, Mora, and Gil-Rojas to file in response to the complaint a dispositive 23 motion, or a notice regarding such motion, on or before July 10, 2023. 24 The Clerk shall TERMINATE Salinas Valley State Prison, the California 25 Department of Corrections and Rehabilitation, Elizabeth Gonzalez, and T. Lemon as 26 defendants in this action. All claims against them are DISMISSED. 27 The Clerk shall terminate all pending motions. 1 2 DISCUSSION 3 A. Standard of Review 4 A federal court must conduct a preliminary screening in any case in which a 5 prisoner seeks redress from a governmental entity or officer or employee of a 6 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 7 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 8 upon which relief may be granted or seek monetary relief from a defendant who is immune 9 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 10 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 11 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 13 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 14 plausibility when the plaintiff pleads factual content that allows the court to draw the 15 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 16 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 17 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 18 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 19 (9th Cir. 1994). 20 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 21 elements: (1) that a right secured by the Constitution or laws of the United States was 22 violated, and (2) that the alleged violation was committed by a person acting under the 23 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 24 B. Legal Claims 25 Keeton alleges that on October 29, 2021, at Salinas Valley State Prison, correctional 26 officers T. Deslaurier Rixman, Juan Mora, and Jose Gil-Rojas used excessive force against 27 him. (Compl., Dkt. No. 1 at 10.) He further alleges that Rixman filed a false Rules 1 Rixman, thereby violating Keeton’s First Amendment rights. (Id. at 11.) Keeton also 2 raises a state tort claim regarding property damage during an October 20, 2021 cell search 3 by Rixman, and a state tort claim of battery against Rixman, Mora, and Gil-Rojas. (Id. at 4 9, 10.) When liberally construed, these claims are cognizable and shall proceed. 5 Keeton’s claims against Elizabeth Gonzalez are DISMISSED. He alleges she was a 6 supervisor who failed to intervene in this use of force and stated in her report that she did 7 not witness the attack. (Compl., Dkt. No. 1 at 11.) Keeton has not presented facts 8 showing that Gonzalez knew of the attack or could have acted to prevent it. Merely being 9 a supervisor and making a statement in a report are not sufficient to confer liability. 10 Keates v. Koile, 883 F.3d 1228, 1241 (9th Cir. 2018) (defendants cannot be held liable for 11 a constitutional violation under 42 U.S.C. § 1983 unless they were integral participants in 12 the unlawful conduct); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (it is not enough 13 that the supervisor merely has a supervisory relationship over the defendants; the plaintiff 14 must show that the supervisor “participated in or directed the violations, or knew of the 15 violations and failed to act to prevent them.”). For these same reasons, his claims against 16 T. Lemon, the Chief Deputy Warden, are DISMISSED. 17 PLAINTIFF KEETON’S MOTIONS 18 Keeton’s motions to extend time to file objections to removal are GRANTED. 19 (Dkt. Nos. 8 and 12.) His objections are considered timely filed. (Dkt. No. 8.) 20 Keeton’s motion for assistance from the Court — he requests “large print writing” 21 — is DENIED. (Dkt. No. 6.) If Keeton has trouble reading my Orders, I will make 22 adjustments as needed. 23 Keeton’s motion to remand the action to state court is DENIED. (Dkt. No. 10.) He 24 contends that he has right to choose the state forum and that federal courts cannot issue 25 injunctive or declaratory relief on a state law claim. (Id. at 2, 3.) Defendants correctly 26 contend that a civil action may be removed from state to federal court if the district courts 27 have original jurisdiction founded on a claim or right arising under the Constitution, 1 to Keeton’s contentions, a federal court may order injunctive and declaratory relief. 2 Keeton’s motion to force Officer Rixman to respond to the complaint and for the 3 Court to issue a subpoena for a personal appearance is DENIED. (Dkt. No. 13.) Rixman 4 has not been served with the complaint and if he is successfully served he must respond 5 according to the filing deadlines imposed by the Court. 6 Keeton’s motion to have the suit assigned to Magistrate Judge DeMarchi is 7 DENIED. (Dkt. No. 19.) He does not have the right to choose the judge who oversees his 8 suit. 9 Keeton has filed motions for the appointment of counsel on grounds that he is 10 visually impaired, the suit presents complex issues, and he would be better served with the 11 assistance of counsel. (Dkt. Nos. 26, 27, and 28.) The decision to request counsel to 12 represent an indigent litigant under 28 U.S.C. § 1915 is within “the sound discretion of the 13 trial court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 14 F.2d 1221, 1236 (9th Cir. 1984). A finding of “exceptional circumstances” requires an 15 evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the 16 plaintiff’s ability to articulate his claims pro se in light of the complexity of the legal issues 17 involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 18 2004). Neither the need for discovery, nor the fact that the pro se litigant would be better 19 served with the assistance of counsel, necessarily qualify the issues involved as complex. 20 See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). 21 There is no doubt that not having a lawyer puts a party at a disadvantage in our 22 adversarial system of justice. Across the United States in 2020, unrepresented prisoners 23 filed almost 8000 cases, roughly 16.65% of all new civil filings. United States Courts for 24 the Ninth Circuit, 2020 Annual Report, https://cdn.ca9.uscourts.gov/datastore/judicial- 25 council/publications /AnnualReport2020.pdf. The high percentage of civil litigants who 26 cannot afford counsel threatens our ability to dispense equal justice to rich and poor alike, 27 as the judicial oath demands. That said, I am compelled to follow controlling precedent 1 me. 2 Keeton has not shown that exceptional circumstances exist. His filings are clear, 3 and the suit does not present complex legal issues. Also, despite his visual impairments, 4 he has filed many documents with the Court, all of which are legible, and he admits he 5 wrote six letters to attorneys requesting representation. (Dkt. No. 26 at 1.) Accordingly, 6 Keeton’s motion for the appointment of counsel is DENIED. I will reconsider the 7 necessity of appointing counsel if circumstances warrant such action at a later date. His 8 motion for an extension of time to find an attorney is DENIED. (Dkt. No. 23.) The 9 motion was filed in September, and predates his motions for the appointment of counsel. 10 CONCLUSION 11 For the foregoing reasons, the Court orders as follows: 12 1. The Court orders service of the complaint (Dkt. No. 1), and all attachments 13 thereto, on defendants T. Deslaurier Rixman, Juan Mora, and Jose Gil-Rojas Richard 14 Garcia, all correctional officers at Salinas Valley State Prison, and orders these defendants 15 to respond to the cognizable claims raised in the complaint. 16 2. Service on these defendants shall proceed under the California Department 17 of Corrections and Rehabilitation’s e-service program for civil rights cases from prisoners 18 in CDCR custody. In accordance with the program, the Clerk is directed to serve on 19 CDCR via email the following documents: the complaint (Docket No. 1) and its 20 attachments; this Order; a CDCR Report of E-Service Waiver form; and a summons. The 21 Clerk also shall serve a copy of this Order on the plaintiff. 22 3. No later than 40 days after service of this order via email on CDCR, CDCR 23 shall provide the Court a completed CDCR Report of E-Service Waiver advising the court 24 which defendant(s) listed in this Order will be waiving service of process without the need 25 for service by the United States Marshal Service (USMS) and which defendant(s) decline 26 to waive service or could not be reached. CDCR also shall provide a copy of the CDCR 27 Report of E-Service Waiver to the California Attorney General’s Office which, within 21 1 waiving service. 2 4. Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall 3 prepare for each defendant who has not waived service according to the CDCR Report of 4 E-Service Waiver a USM-205 Form. The Clerk shall provide to the USMS the completed 5 USM-205 forms and copies of this Order, the summons and the operative complaint for 6 service upon each defendant who has not waived service. 7 5. On or before July 10, 2023, defendants may file a motion for summary 8 judgment or other dispositive motion with respect to the claim(s) in the complaint found to 9 be cognizable above. 10 a. If defendants elect to file a motion to dismiss on the grounds plaintiff 11 failed to exhaust his available administrative remedies as required by 42 U.S.C. 12 § 1997e(a), defendants shall do so in a motion for summary judgment, as required by 13 Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). 14 b. 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 6. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 21 and served on defendants no later than forty-five (45) days from the date defendants’ 22 motion is filed. 23 7. Defendants shall file a reply brief no later than fifteen (15) days after 24 plaintiff’s opposition is filed. 25 8. The motion shall be deemed submitted as of the date the reply brief is due. 26 No hearing will be held on the motion unless the Court so orders at a later date. 27 9. All communications by the plaintiff with the Court must be served on 1 copy of the document to defendants or defendants’ counsel. 2 10. Discovery may be taken in accordance with the Federal Rules of Civil 3 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 4 Rule 16-1 is required before the parties may conduct discovery. 5 Plaintiff is reminded that state prisoners may review all non-confidential material in 6 their medical and central files, pursuant to In re Olson, 37 Cal. App. 3d 783 (Cal. Ct. App. 7 1974); 15 California Code of Regulations § 3370; and the CDCR’s Department Operations 8 Manual §§ 13030.4, 13030.16, 13030.16.1-13030.16.3, 13030.21, and 71010.11.1. 9 Requests to review these files or for copies of materials in them must be made directly to 10 prison officials, not to the Court. 11 Plaintiff may also use any applicable jail procedures to request copies of (or the 12 opportunity to review) any reports, medical records, or other records maintained by jail 13 officials that are relevant to the claims found cognizable in this Order. Such requests must 14 be made directly to jail officials, not to the Court. 15 11. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 16 Court informed of any change of address and must comply with the Court’s orders in a 17 timely fashion. Failure to do so may result in the dismissal of this action for failure to 18 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 19 12. Extensions of time must be filed no later than the deadline sought to be 20 extended and must be accompanied by a showing of good cause. 21 13. A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs be 22 given “notice of what is required of them in order to oppose” summary judgment motions 23 at the time of filing of the motions, rather than when the court orders service of process or 24 otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 25 2012). Defendant shall provide the following notice to plaintiff when and if he files and 26 serves any motion for summary judgment:

27 The defendants have made a motion for summary judgment by which they 1 Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. 2 Rule 56 tells you what you must do in order to oppose a motion for summary 3 judgment. Generally, summary judgment must be granted when there is no 4 genuine issue of material fact — that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for 5 summary judgment is entitled to judgment as a matter of law, which will end 6 your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn 7 testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 8 interrogatories, or authenticated documents, as provided in Rule 56(e), that 9 contradict the facts shown in the defendants’ declarations and documents and show that there is a genuine issue of material fact for trial. If you do not 10 submit your own evidence in opposition, summary judgment, if appropriate, i may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. 12 || Rand vy. Rowland, 154 F.3d 952, 962-963 (9th Cir. 1998).

13 14. The Clerk shall TERMINATE Salinas Valley State Prison, the California

14 Department of Corrections and Rehabilitation, Elizabeth Gonzalez, and T. Lemon as 15 || defendants in this action. All claims against them are DISMISSED. a 16 15. | The Clerk shall terminate all pending motions.

17 IT IS SO ORDERED. © 4 18 | Dated: April 19, 2023 . 19 AM H. ORRI 20 United States District Judge 21 22 23 24 25 26 27 28