1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GIOVANNI MONTES, Case No. 22-cv-07229-JST
8 Plaintiff, ORDER OF SERVICE v. 9
10 MILLER, Defendant. 11
12 13 Plaintiff has filed a pro se action pursuant to 42 U.S.C. § 1983. Now before the Court for 14 review under 28 U.S.C. § 1915A is Plaintiff’s complaint. ECF No. 1. Plaintiff has been granted 15 leave to proceed in forma pauperis in a separate order. 16 DISCUSSION 17 A. Standard of Review 18 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 20 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 21 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 22 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 23 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 24 989, 993 (9th Cir. 2020). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 27 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 1 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 2 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 3 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 4 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 6 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 7 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 8 U.S. 42, 48 (1988). 9 B. Complaint 10 According to the complaint, on July 30, 2022, Plaintiff suffered a seizure as he was being 11 booked into Sonoma County Jail. During his seizure, he was physically and verbally abused by 12 Sonoma County Jail Sergeant Miller, who threw Plaintiff to the ground. While Plaintiff was in the 13 prone position on the floor, Sergeant Miller hit Plaintiff in the head with his hands. Plaintiff was 14 also placed in a filthy holding cell that had urine on the floor. These actions cased Plaintiff pain in 15 his back, head and neck. Liberally construed, the complaint’s claims that Sgt. Miller threw 16 Plaintiff to the ground as he was suffering a seizure, and hit Plaintiff in the head while Plaintiff 17 was in a prone position state a cognizable Fourteenth Amendment claim for use of excessive force. 18 See Bell v. Wolfish, 441 U.S. 520, 535 n.16, 536-37 (1979) (when pretrial detainee challenges 19 conditions of confinement, proper inquiry is whether conditions amount to punishment in violation 20 of Due Process Clause of Fourteenth Amendment) (state may detain pretrial detainee “to ensure 21 his presence at trial and may subject him to the restrictions and conditions of the detention facility 22 so long as those conditions and restrictions do not amount to punishment or otherwise violate the 23 Constitution.”). 24 CONCLUSION 25 For the foregoing reasons, the Court orders as follows. 26 1. Liberally construed, the complaint states a cognizable Fourteenth Amendment 27 claim against defendant Sonoma County Jail sergeant Miller. The Clerk shall issue summons and 1 No. 1), with all attachments thereto, and a copy of this order upon defendant Sonoma County 2 Jail sergeant Miller at Sonoma County Jail, 2777 Ventura Ave, Santa Rosa CA 95403. A 3 courtesy copy of the complaint with attachments and this order shall also be mailed to the Sonoma 4 County Counsel, at 575 Administrative Drive, Room 105, Santa Rosa, CA 95403. 5 2. In order to expedite the resolution of this case, the Court orders as follows: 6 a. No later than 91 days from the date this order is filed, Defendant must file 7 and serve a motion for summary judgment or other dispositive motion. If Defendant is of the 8 opinion that this case cannot be resolved by summary judgment, Defendant must so inform the 9 Court prior to the date the motion is due. A motion for summary judgment also must be 10 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 11 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 12 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 13 served concurrently with motion for summary judgment).1 14 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 15 must be filed with the Court and served upon Defendant no later than 28 days from the date the 16 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 17 provided later in this order as he prepares his opposition to any motion for summary judgment. 18 c. Defendant shall file a reply brief no later than 14 days after the date the 19 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 20 hearing will be held on the motion. 21 3. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 22 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 23 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 24 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 25 1 If Defendant asserts that Plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), defendant must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) 27 (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that 1 any fact that would affect the result of your case, the party who asked for summary judgment is 2 entitled to judgment as a matter of law, which will end your case. When a party you are suing 3 makes a motion for summary judgment that is properly supported by declarations (or other sworn 4 testimony), you cannot simply rely on what your complaint says.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GIOVANNI MONTES, Case No. 22-cv-07229-JST
8 Plaintiff, ORDER OF SERVICE v. 9
10 MILLER, Defendant. 11
12 13 Plaintiff has filed a pro se action pursuant to 42 U.S.C. § 1983. Now before the Court for 14 review under 28 U.S.C. § 1915A is Plaintiff’s complaint. ECF No. 1. Plaintiff has been granted 15 leave to proceed in forma pauperis in a separate order. 16 DISCUSSION 17 A. Standard of Review 18 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 20 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 21 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 22 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 23 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 24 989, 993 (9th Cir. 2020). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 27 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 1 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 2 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 3 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 4 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 6 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 7 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 8 U.S. 42, 48 (1988). 9 B. Complaint 10 According to the complaint, on July 30, 2022, Plaintiff suffered a seizure as he was being 11 booked into Sonoma County Jail. During his seizure, he was physically and verbally abused by 12 Sonoma County Jail Sergeant Miller, who threw Plaintiff to the ground. While Plaintiff was in the 13 prone position on the floor, Sergeant Miller hit Plaintiff in the head with his hands. Plaintiff was 14 also placed in a filthy holding cell that had urine on the floor. These actions cased Plaintiff pain in 15 his back, head and neck. Liberally construed, the complaint’s claims that Sgt. Miller threw 16 Plaintiff to the ground as he was suffering a seizure, and hit Plaintiff in the head while Plaintiff 17 was in a prone position state a cognizable Fourteenth Amendment claim for use of excessive force. 18 See Bell v. Wolfish, 441 U.S. 520, 535 n.16, 536-37 (1979) (when pretrial detainee challenges 19 conditions of confinement, proper inquiry is whether conditions amount to punishment in violation 20 of Due Process Clause of Fourteenth Amendment) (state may detain pretrial detainee “to ensure 21 his presence at trial and may subject him to the restrictions and conditions of the detention facility 22 so long as those conditions and restrictions do not amount to punishment or otherwise violate the 23 Constitution.”). 24 CONCLUSION 25 For the foregoing reasons, the Court orders as follows. 26 1. Liberally construed, the complaint states a cognizable Fourteenth Amendment 27 claim against defendant Sonoma County Jail sergeant Miller. The Clerk shall issue summons and 1 No. 1), with all attachments thereto, and a copy of this order upon defendant Sonoma County 2 Jail sergeant Miller at Sonoma County Jail, 2777 Ventura Ave, Santa Rosa CA 95403. A 3 courtesy copy of the complaint with attachments and this order shall also be mailed to the Sonoma 4 County Counsel, at 575 Administrative Drive, Room 105, Santa Rosa, CA 95403. 5 2. In order to expedite the resolution of this case, the Court orders as follows: 6 a. No later than 91 days from the date this order is filed, Defendant must file 7 and serve a motion for summary judgment or other dispositive motion. If Defendant is of the 8 opinion that this case cannot be resolved by summary judgment, Defendant must so inform the 9 Court prior to the date the motion is due. A motion for summary judgment also must be 10 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 11 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 12 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 13 served concurrently with motion for summary judgment).1 14 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 15 must be filed with the Court and served upon Defendant no later than 28 days from the date the 16 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 17 provided later in this order as he prepares his opposition to any motion for summary judgment. 18 c. Defendant shall file a reply brief no later than 14 days after the date the 19 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 20 hearing will be held on the motion. 21 3. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 22 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 23 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 24 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 25 1 If Defendant asserts that Plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), defendant must raise such argument in a motion for summary judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) 27 (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that 1 any fact that would affect the result of your case, the party who asked for summary judgment is 2 entitled to judgment as a matter of law, which will end your case. When a party you are suing 3 makes a motion for summary judgment that is properly supported by declarations (or other sworn 4 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 5 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 6 as provided in Rule 56(c), that contradict the facts shown in the defendant’s declarations and 7 documents and show that there is a genuine issue of material fact for trial. If you do not submit 8 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 9 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 10 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 11 not excuse defendant’s obligation to serve said notice again concurrently with a motion for 12 summary judgment. Woods, 684 F.3d at 939). 13 4. All communications by Plaintiff with the Court must be served on Defendant’s 14 counsel by mailing a true copy of the document to Defendant’s counsel. The Court may disregard 15 any document which a party files but fails to send a copy of to his opponent. Until Defendant’s 16 counsel has been designated, Plaintiff may mail a true copy of the document directly to Defendant, 17 but once Defendant is represented by counsel, all documents must be mailed to counsel rather than 18 directly to Defendant. 19 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 20 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 21 before the parties may conduct discovery. 22 6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 23 Court informed of any change of address and must comply with the Court’s orders in a timely 24 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 25 to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 26 pending case every time he is moved to a new facility. 27 7. Any motion for an extension of time must be filed no later than the deadline sought 1 8. Plaintiff is cautioned that he must include the case name and case number for this 2 || case on any document he submits to the Court for consideration in this case. 3 IT IS SO ORDERED.
4 Dated: January 27, 2023 5 JON S. TIGAR 6 nited States District Judge 7 8 9 10 11 12
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