1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JASON GERAY, Case No. 20-cv-02580-JST
8 Plaintiff, ORDER OF SERVICE v. 9 Re: ECF No. 10 ANTHONY MORRISON, Defendant. 11
12 13 Plaintiff, an inmate at California Correctional Institution in Tehachapi, California, has filed 14 a pro se action pursuant to 42 U.S.C. § 1983. His complaint is now before the Court for review 15 under 28 U.S.C. § 1915A. He has been granted leave to proceed in forma pauperis in a separate 16 order. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 25 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 3 plaintiff’s obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than 4 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . 5 . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 7 proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 570. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 9 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 10 the alleged violation was committed by a person acting under the color of state law. See West v. 11 Atkins, 487 U.S. 42, 48 (1988). 12 B. Complaint 13 Plaintiff alleges that, on May 9, 2017, while housed at Salinas Valley State Prison 14 (“SVSP”), he was assisting a Spanish-speaking inmate prepare legal papers when SVSP officer 15 Morrison assaulted him. Plaintiff was handcuffed and although he did not resist the correctional 16 officers, Officer Morrison lost his temper and hit him with a closed fist at full force on the back of 17 his head while yelling foul language. ECF No. 1 at 3. Plaintiff argues that the assault caused him 18 “atypical and significant hardships of trauma.” Id. Liberally construed, the complaint states a 19 cognizable claim for use of excessive force in violation of the Eighth Amendment.1 Whitley v. 20 Albers, 475 U.S. 312, 319 (1986) (unnecessary and wanton infliction of pain constitutes cruel and 21 1 However, it appears that plaintiff has not met the exhaustion requirement set forth in the Prison 22 Litigation Reform Act, 42 U.S.C. § 1997e(a) (requiring prisoners to exhaust available administrative remedies prior to bring suit pursuant to 42 U.S.C. § 1983), and/or the principles of 23 Younger abstention or O’Shea abstention compel the Court to abstain from considering this claim, see Younger v. Harris, 401 U.S. 37, 43-54 (1971) (under principles of comity and federalism, 24 federal court should not interfere with ongoing state criminal proceedings by granting injunctive or declaratory relief absent extraordinary circumstances); Los Angeles Cnty. Bar Ass’n v. Eu, 979 25 F.2d 697, 703 (9th Cir. 1992) (O’Shea v. Littleton, 414 U.S. 488 (1974), stands for general proposition that federal courts “should be very reluctant to grant relief that would entail heavy 26 federal interference in such sensitive state activities as administration of the judicial system.”). Plaintiff states that he has not exhausted his administrative remedies with respect to this claim 27 because the incident “is now at a pre-trial stage in Monterey County Superior Court [Case No.] 1 unusual punishment forbidden by Eighth Amendment); Hudson v. McMillian, 503 U.S. 1, 6 2 (1992) (core judicial inquiry is whether force was applied in good-faith effort to maintain or 3 restore discipline, or maliciously and sadistically to cause harm). 4 CONCLUSION 5 For the foregoing reasons, the Court orders as follows. 6 1. Liberally construed, the complaint states a cognizable Eighth Amendment claim 7 against defendant SVSP Officer Morrison. The Clerk shall issue summons and the United States 8 Marshal shall serve, without prepayment of fees, a copy of the complaint (ECF No. 1), with all 9 attachments thereto, and a copy of this order upon defendant Officer Anthony Morrison at 10 Salinas Valley State Prison, 31625 Highway 101, Soledad CA 93960. A courtesy copy of the 11 complaint with attachments and this order shall also be mailed to the California Attorney 12 General’s Office. 13 2. In order to expedite the resolution of this case, the Court orders as follows: 14 a. No later than 91 days from the date this order is filed, defendant must file 15 and serve a motion for summary judgment or other dispositive motion. If defendant is of the 16 opinion that this case cannot be resolved by summary judgment, defendant must so inform the 17 Court prior to the date the motion is due. A motion for summary judgment also must be 18 accompanied by a Rand notice so that plaintiff will have fair, timely, and adequate notice of what 19 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 20 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 21 served concurrently with motion for summary judgment).2 22 b.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JASON GERAY, Case No. 20-cv-02580-JST
8 Plaintiff, ORDER OF SERVICE v. 9 Re: ECF No. 10 ANTHONY MORRISON, Defendant. 11
12 13 Plaintiff, an inmate at California Correctional Institution in Tehachapi, California, has filed 14 a pro se action pursuant to 42 U.S.C. § 1983. His complaint is now before the Court for review 15 under 28 U.S.C. § 1915A. He has been granted leave to proceed in forma pauperis in a separate 16 order. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 25 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 3 plaintiff’s obligation to provide the grounds of his ‘entitle[ment] to relief’ requires more than 4 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . 5 . . Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 7 proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 570. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 9 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 10 the alleged violation was committed by a person acting under the color of state law. See West v. 11 Atkins, 487 U.S. 42, 48 (1988). 12 B. Complaint 13 Plaintiff alleges that, on May 9, 2017, while housed at Salinas Valley State Prison 14 (“SVSP”), he was assisting a Spanish-speaking inmate prepare legal papers when SVSP officer 15 Morrison assaulted him. Plaintiff was handcuffed and although he did not resist the correctional 16 officers, Officer Morrison lost his temper and hit him with a closed fist at full force on the back of 17 his head while yelling foul language. ECF No. 1 at 3. Plaintiff argues that the assault caused him 18 “atypical and significant hardships of trauma.” Id. Liberally construed, the complaint states a 19 cognizable claim for use of excessive force in violation of the Eighth Amendment.1 Whitley v. 20 Albers, 475 U.S. 312, 319 (1986) (unnecessary and wanton infliction of pain constitutes cruel and 21 1 However, it appears that plaintiff has not met the exhaustion requirement set forth in the Prison 22 Litigation Reform Act, 42 U.S.C. § 1997e(a) (requiring prisoners to exhaust available administrative remedies prior to bring suit pursuant to 42 U.S.C. § 1983), and/or the principles of 23 Younger abstention or O’Shea abstention compel the Court to abstain from considering this claim, see Younger v. Harris, 401 U.S. 37, 43-54 (1971) (under principles of comity and federalism, 24 federal court should not interfere with ongoing state criminal proceedings by granting injunctive or declaratory relief absent extraordinary circumstances); Los Angeles Cnty. Bar Ass’n v. Eu, 979 25 F.2d 697, 703 (9th Cir. 1992) (O’Shea v. Littleton, 414 U.S. 488 (1974), stands for general proposition that federal courts “should be very reluctant to grant relief that would entail heavy 26 federal interference in such sensitive state activities as administration of the judicial system.”). Plaintiff states that he has not exhausted his administrative remedies with respect to this claim 27 because the incident “is now at a pre-trial stage in Monterey County Superior Court [Case No.] 1 unusual punishment forbidden by Eighth Amendment); Hudson v. McMillian, 503 U.S. 1, 6 2 (1992) (core judicial inquiry is whether force was applied in good-faith effort to maintain or 3 restore discipline, or maliciously and sadistically to cause harm). 4 CONCLUSION 5 For the foregoing reasons, the Court orders as follows. 6 1. Liberally construed, the complaint states a cognizable Eighth Amendment claim 7 against defendant SVSP Officer Morrison. The Clerk shall issue summons and the United States 8 Marshal shall serve, without prepayment of fees, a copy of the complaint (ECF No. 1), with all 9 attachments thereto, and a copy of this order upon defendant Officer Anthony Morrison at 10 Salinas Valley State Prison, 31625 Highway 101, Soledad CA 93960. A courtesy copy of the 11 complaint with attachments and this order shall also be mailed to the California Attorney 12 General’s Office. 13 2. In order to expedite the resolution of this case, the Court orders as follows: 14 a. No later than 91 days from the date this order is filed, defendant must file 15 and serve a motion for summary judgment or other dispositive motion. If defendant is of the 16 opinion that this case cannot be resolved by summary judgment, defendant must so inform the 17 Court prior to the date the motion is due. A motion for summary judgment also must be 18 accompanied by a Rand notice so that plaintiff will have fair, timely, and adequate notice of what 19 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 20 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 21 served concurrently with motion for summary judgment).2 22 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 23 must be filed with the Court and served upon defendant no later than 28 days from the date the 24 25 2 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 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 2 provided later in this order as he prepares his opposition to any motion for summary judgment. 3 c. Defendant shall file a reply brief no later than 14 days after the date the 4 opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No 5 hearing will be held on the motion. 6 3. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 7 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 8 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 9 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 10 any fact that would affect the result of your case, the party who asked for summary judgment is 11 entitled to judgment as a matter of law, which will end your case. When a party you are suing 12 makes a motion for summary judgment that is properly supported by declarations (or other sworn 13 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 14 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 15 as provided in Rule 56(c), that contradict the facts shown in the defendant’s declarations and 16 documents and show that there is a genuine issue of material fact for trial. If you do not submit 17 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 18 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 19 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 20 not excuse defendant’s obligation to serve said notice again concurrently with a motion for 21 summary judgment. Woods, 684 F.3d at 939). 22 4. All communications by plaintiff with the Court must be served on defendant’s 23 counsel by mailing a true copy of the document to defendant’s counsel. The Court may disregard 24 any document which a party files but fails to send a copy of to his opponent. Until defendant’s 25 counsel has been designated, plaintiff may mail a true copy of the document directly to defendant, 26 but once defendant is represented by counsel, all documents must be mailed to counsel rather than 27 directly to defendant. 1 5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 2 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 3 before the parties may conduct discovery. 4 6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the 5 Court informed of any change of address and must comply with the Court’s orders in a timely 6 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 7 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 8 || pending case every time he is moved to a new facility. 9 7. Any motion for an extension of time must be filed no later than the deadline sought 10 || to be extended and must be accompanied by a showing of good cause. 11 8. Plaintiff is cautioned that he must include the case name and case number for this 12 || case on any document he submits to the Court for consideration in this case. 5 13 IT IS SO ORDERED. |! Dated: May 27, 2020 . © Z JON S. TIGAR a 16 ited States District Judge
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