1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ENRIQUE MARTINEZ, BJ6602, Case No. 22-cv-04707-SK (PR)
7 Plaintiff, ORDER OF SERVICE 8 v.
9 L. ZAVALA, Correctional Officer, 10 Defendant(s).
11 Plaintiff, a state prisoner incarcerated at Salinas Valley State Prison (SVSP), has filed a pro 12 se civil rights complaint for damages under 42 U.S.C. § 1983 alleging that, on July 15, 2020, 13 Correctional Officer L. Zavala delayed opening from the tower control booth a cell door that had 14 shut on Plaintiff’s right hand and the wheels of his wheelchair, and instead Zavala laughed at 15 Plaintiff and joked with other officers while Plaintiff screamed out in pain. 16 DISCUSSION 17 A. Standard of Review 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 20 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 21 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 22 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 23 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 24 F.2d 696, 699 (9th Cir. 1990). 25 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 26 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 27 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 1 B. Legal Claims 2 The Eighth Amendment requires that prison officials take reasonable measures to 3 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The failure of 4 prison officials to protect prisoners from dangerous conditions at the prison violates the Eighth 5 Amendment when two requirements are met: (1) the deprivation alleged is, objectively, 6 sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate 7 health or safety. Id. at 834. A prison official is deliberately indifferent if he knows of and 8 disregards an excessive risk to inmate health or safety. Id. at 837. 9 Liberally construed, Plaintiff’s allegations that Zavala delayed opening the cell door that 10 shut on Plaintiff’s right hand and instead laughed at Plaintiff while plaintiff screamed out in pain 11 states an arguably cognizable failure-to-protect Eighth Amendment claim under § 1983 against 12 Zavala and will be ordered served on Zavala. See Hearns v. Terhune, 413 F.3d 1036, 1041-42 13 (9th Cir. 2005) (allegations in pro se complaint sufficient to raise inference that named prison 14 officials knew that plaintiff faced a substantial risk of serious harm and disregarded that risk by 15 failing to take reasonable measures to abate it state failure-to-protect claim). 16 CONCLUSION 17 For the foregoing reasons and for good cause shown, 18 1. The following defendant(s) shall be served: 19 a. Correctional Officer L. Zavala at SVSP. 20 Service on the listed defendant(s) shall proceed under the California Department of 21 Corrections and Rehabilitation’s (CDCR) e-service pilot program for civil rights cases from 22 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve on 23 CDCR via email the following documents: the operative complaint, this order of service, the 24 notice of assignment of prisoner case to a United States magistrate judge and accompanying 25 magistrate judge jurisdiction consent or declination to consent form, a CDCR Report of E-Service 26 Waiver form and a summons. The clerk shall serve by mail a copy of this order on the plaintiff. 27 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 1 listed in this order will be waiving service of process without the need for service by the United 2 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 3 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver and of the 4 notice of assignment of prisoner case to a magistrate judge and accompanying magistrate judge 5 jurisdiction consent or declination to consent form to the California Attorney General’s Office, 6 which, within 21 days, shall file with the court a waiver of service of process for the defendant(s) 7 who are waiving service and, within 28 days thereafter, shall file a magistrate judge jurisdiction 8 consent or declination to consent form as to the defendant(s) who waived service. 9 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 10 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 11 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 form and copies 12 of this order, summons, operative complaint and notice of assignment of prisoner case to a 13 magistrate judge and accompanying magistrate judge jurisdiction consent or declination to consent 14 form for service upon each defendant who has not waived service. The clerk also shall provide to 15 the USMS a copy of the CDCR Report of E-Service Waiver. 16 2. In order to expedite the resolution of this case, the court orders as follows: 17 a. No later than 90 days from the date of this order, Defendant Zavala shall 18 serve and file a motion for summary judgment or other dispositive motion. A motion for summary 19 judgment must be supported by adequate factual documentation and must conform in all respects 20 to Federal Rule of Civil Procedure 56, and must include as exhibits all records and incident reports 21 stemming from the events at issue. A motion for summary judgment also must be accompanied 22 by a Rand notice so that plaintiff will have fair, timely and adequate notice of what is required of 23 him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice 24 requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served 25 concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust 26 available administrative remedies (where such a motion, rather than a motion for summary 27 judgment for failure to exhaust, is appropriate) must be accompanied by a similar notice. Stratton 1 in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. 2 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with motion to 3 dismiss for failure to exhaust available administrative remedies). 4 If Defendant is of the opinion that this case cannot be resolved by summary judgment or 5 other dispositive motion, he shall so inform the court prior to the date his motion is due.
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ENRIQUE MARTINEZ, BJ6602, Case No. 22-cv-04707-SK (PR)
7 Plaintiff, ORDER OF SERVICE 8 v.
9 L. ZAVALA, Correctional Officer, 10 Defendant(s).
11 Plaintiff, a state prisoner incarcerated at Salinas Valley State Prison (SVSP), has filed a pro 12 se civil rights complaint for damages under 42 U.S.C. § 1983 alleging that, on July 15, 2020, 13 Correctional Officer L. Zavala delayed opening from the tower control booth a cell door that had 14 shut on Plaintiff’s right hand and the wheels of his wheelchair, and instead Zavala laughed at 15 Plaintiff and joked with other officers while Plaintiff screamed out in pain. 16 DISCUSSION 17 A. Standard of Review 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 20 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of 21 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 22 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 23 § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 24 F.2d 696, 699 (9th Cir. 1990). 25 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 26 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 27 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 1 B. Legal Claims 2 The Eighth Amendment requires that prison officials take reasonable measures to 3 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The failure of 4 prison officials to protect prisoners from dangerous conditions at the prison violates the Eighth 5 Amendment when two requirements are met: (1) the deprivation alleged is, objectively, 6 sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate 7 health or safety. Id. at 834. A prison official is deliberately indifferent if he knows of and 8 disregards an excessive risk to inmate health or safety. Id. at 837. 9 Liberally construed, Plaintiff’s allegations that Zavala delayed opening the cell door that 10 shut on Plaintiff’s right hand and instead laughed at Plaintiff while plaintiff screamed out in pain 11 states an arguably cognizable failure-to-protect Eighth Amendment claim under § 1983 against 12 Zavala and will be ordered served on Zavala. See Hearns v. Terhune, 413 F.3d 1036, 1041-42 13 (9th Cir. 2005) (allegations in pro se complaint sufficient to raise inference that named prison 14 officials knew that plaintiff faced a substantial risk of serious harm and disregarded that risk by 15 failing to take reasonable measures to abate it state failure-to-protect claim). 16 CONCLUSION 17 For the foregoing reasons and for good cause shown, 18 1. The following defendant(s) shall be served: 19 a. Correctional Officer L. Zavala at SVSP. 20 Service on the listed defendant(s) shall proceed under the California Department of 21 Corrections and Rehabilitation’s (CDCR) e-service pilot program for civil rights cases from 22 prisoners in CDCR custody. In accordance with the program, the clerk is directed to serve on 23 CDCR via email the following documents: the operative complaint, this order of service, the 24 notice of assignment of prisoner case to a United States magistrate judge and accompanying 25 magistrate judge jurisdiction consent or declination to consent form, a CDCR Report of E-Service 26 Waiver form and a summons. The clerk shall serve by mail a copy of this order on the plaintiff. 27 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 1 listed in this order will be waiving service of process without the need for service by the United 2 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 3 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver and of the 4 notice of assignment of prisoner case to a magistrate judge and accompanying magistrate judge 5 jurisdiction consent or declination to consent form to the California Attorney General’s Office, 6 which, within 21 days, shall file with the court a waiver of service of process for the defendant(s) 7 who are waiving service and, within 28 days thereafter, shall file a magistrate judge jurisdiction 8 consent or declination to consent form as to the defendant(s) who waived service. 9 Upon receipt of the CDCR Report of E-Service Waiver, the clerk shall prepare for each 10 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 11 USM-205 Form. The clerk shall provide to the USMS the completed USM-205 form and copies 12 of this order, summons, operative complaint and notice of assignment of prisoner case to a 13 magistrate judge and accompanying magistrate judge jurisdiction consent or declination to consent 14 form for service upon each defendant who has not waived service. The clerk also shall provide to 15 the USMS a copy of the CDCR Report of E-Service Waiver. 16 2. In order to expedite the resolution of this case, the court orders as follows: 17 a. No later than 90 days from the date of this order, Defendant Zavala shall 18 serve and file a motion for summary judgment or other dispositive motion. A motion for summary 19 judgment must be supported by adequate factual documentation and must conform in all respects 20 to Federal Rule of Civil Procedure 56, and must include as exhibits all records and incident reports 21 stemming from the events at issue. A motion for summary judgment also must be accompanied 22 by a Rand notice so that plaintiff will have fair, timely and adequate notice of what is required of 23 him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice 24 requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served 25 concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust 26 available administrative remedies (where such a motion, rather than a motion for summary 27 judgment for failure to exhaust, is appropriate) must be accompanied by a similar notice. Stratton 1 in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. 2 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with motion to 3 dismiss for failure to exhaust available administrative remedies). 4 If Defendant is of the opinion that this case cannot be resolved by summary judgment or 5 other dispositive motion, he shall so inform the court prior to the date his motion is due. All 6 papers filed with the court shall be served promptly on Plaintiff. 7 b. Plaintiff must serve and file an opposition or statement of non-opposition to 8 the dispositive motion not more than 28 days after the motion is served and filed. 9 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 10 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 11 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 12 be granted when there is no genuine issue of material fact – that is, if there is no real dispute about 13 any fact that would affect the result of your case, the party who asked for summary judgment is 14 entitled to judgment as a matter of law, which will end your case. When a party you are suing 15 makes a motion for summary judgment that is properly supported by declarations (or other sworn 16 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 17 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 18 as provided in [current Rule 56(c)], that contradicts the facts shown in the defendant’s declarations 19 and documents and show that there is a genuine issue of material fact for trial. If you do not 20 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 21 against you. If summary judgment is granted, your case will be dismissed and there will be no 22 trial. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App. A). 23 Plaintiff also is advised that a motion to dismiss for failure to exhaust available 24 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 25 prejudice. You must “develop a record” and present it in your opposition in order to dispute any 26 “factual record” presented by the defendants in their motion to dismiss. Wyatt v. Terhune, 315 27 F.3d 1108, 1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show that you 1 may include: (1) declarations, which are statements signed under penalty of perjury by you or 2 || others who have personal knowledge of relevant matters; (2) authenticated documents — 3 documents accompanied by a declaration showing where they came from and why they are 4 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 5 in your complaint insofar as they were made under penalty of perjury and they show that you have 6 || personal knowledge of the matters state therein. In considering a motion to dismiss for failure to 7 exhaust, the court can decide disputed issues of fact with regard to this portion of the case. 8 || Stratton, 697 F.3d at 1008-09. 9 (The Rand and Wyatt/Stratton notices above do not excuse defendants’ obligation to serve 10 said notices again concurrently with motions to dismiss for failure to exhaust available 11 administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.) 12 d. Defendant must serve and file a reply to an opposition not more than 14 5 13 days after the opposition is served and filed. 14 e. The motion shall be deemed submitted as of the date the reply is due. No 3 15 hearing will be held on the motion unless the court so orders at a later date. 16 3. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 3 17 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 18 || before the parties may conduct discovery. 19 4. All communications by Plaintiff with the court must be served on Defendant, or 20 || Defendant’s counsel once counsel has been designated, by mailing a true copy of the document to 21 Defendants or Defendant’s counsel. 22 5. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court 23 and all parties informed of any change of address and must comply with the court’s orders in a 24 || timely fashion. Failure to do so may result in the dismissal of this action pursuant to Federal Rule 25 of Civil Procedure 41(b). 26 IT IS SO ORDERED. le . 27 Dated: October 27, 2022 Arvin SALLIE KIM 28 United States Magistrate Judge