1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, 11 Case No. 18-03972 BLF (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND SERVICE; DIRECTING v. 13 DEFENDANT TO FILE
DISPOSITIVE MOTION OR 14 A. ARQUEZA, NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendant. CLERK
18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983. The Court twice dismissed the complaint with leave to amend for 20 Plaintiff to comply with Rules 18(a) and 20(a) of the Federal Rules of Civil Procedure. 21 (Docket Nos. 10, 19.) Plaintiff has filed a second amended complaint. (Docket No. 23, 22 hereinafter “SAC.”) 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Plaintiff’s Claims 10 Plaintiff claims that on or about April 30, 2018, while detained in the Sheriff’s 11 custody at the San Mateo County – Maguire Correctional Facility, he was repeatedly 12 beaten and battered by Defendant Sheriff Deputy A. Arqueza (Badge #314), in retaliation 13 for requesting a jail grievance form. (SAC at 4.) Plaintiff claims Defendant Arqueza 14 threw him onto the ground, placed his body weight and knees onto his head, back, legs and 15 arms, while handcuffing Plaintiff behind his back, and that the handcuffs were also applied 16 extremely tight. (Id.) Plaintiff claims that all times, he did not resist nor pose a threat, and 17 that he was complaint to Defendant Arqueza’s commands prior and after being beaten. 18 (Id.) Plaintiff claims that Defendant then placed him, barefoot, in a holding cell where he 19 then threatened Plaintiff with violence. (Id.) Plaintiff claims that Defendant Arqueza 20 prevented him from seeking medical attention while in the holding cell. (Id. at 5.) 21 Plaintiff also claims that Defendant Arqueza exposed him to unsanitary conditions in the 22 holding cell, and later transferred him to a different housing unit and assigned him to a cell 23 with worse conditions of confinement. (Id.) Based on these actions, Plaintiff claims 24 Defendant Arqueza violated his rights under the First, Eighth, and Fourteenth 25 Amendments. (Id. at 4-5.) Plaintiff seeks declaratory and injunctive relief as well as 26 damages. (Id. at 6.) Liberally construed, Plaintiff’s allegations are sufficient to state a 1 force, see Farmer v. Brennan, 511 U.S. 824, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 2 6 (1992), deliberate indifference to serious medical needs, see Estelle v. Gamble, 429 U.S. 3 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), and unsanitary 4 prison conditions, see Farmer, 511 U.S. at 832. 5 However, the Court finds Plaintiff fails to state a retaliation claim under the First 6 Amendment. Plaintiff was already advised that in order to state a retaliation claim, he 7 must allege five basic elements under Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 8 2005). (Docket No. 19 at 8-9.) Here again, Plaintiff fails to allege that Defendant’s 9 adverse actions chilled the exercise of his First Amendment rights and that the action did 10 not reasonably advance a legitimate correctional goal. (Id. at 9.) Plaintiff has already been 11 afforded two opportunities to amend, and this Court has broad discretion to deny leave to 12 amend where Plaintiff has already been granted leave to file an amended complaint. See 13 Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003); Ferdik v. Bonzelet, 963 14 F.2d 1258, 1261 (9th Cir. 1992). Accordingly, Plaintiff shall not be afforded any further 15 opportunity to correct this deficiency. 16 Plaintiff also claims that Defendant Arqueza confiscated and reviewed his property 17 outside of his presence, including legal documents, in order to prevent Plaintiff from 18 initiating a complaint and assisting in ongoing criminal proceedings in violation of the 19 First and Sixth Amendments. (SAC at 5.) For the same reason discussed above, Plaintiff 20 still fails to state a First Amendment retaliation based on these allegations. Nor does the 21 Court see any basis to support a Sixth Amendment claim because this action does not 22 involve any ongoing criminal prosecution against Plaintiff. Accordingly, the Sixth 23 Amendment claim must be dismissed for failure to state a claim for relief. 24 Lastly, Plaintiff claims Defendant Arquez presented him with false disciplinary 25 charges without a hearing or justification which resulted in the loss of various privileges. 26 violating his rights under the First, Eighth, and Fourteenth Amendments. (Id.) Liberally 1 Amendment, see Wolff v. McDonnell, 418 U.S. 539, 556 (1974), but no claim under the 2 First or Eighth Amendments. 3 4 CONCLUSION 5 For the reasons state above, the Court orders as follows: 6 1. Plaintiff’s claims under the First and Sixth Amendments are DISMISSED for 7 failure to state a claim. The only claims that will proceed in this action are under the 8 Eighth Amendment for excessive force, deliberate indifference to serious medical needs, 9 and unsanitary conditions, as well as a due process claim for an allegedly false and 10 unjustified disciplinary action. 11 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 12 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 13 of the second amended complaint, (Docket No. 23), all attachments thereto, and a copy of 14 this order upon Defendant Deputy Sheriff A. Arqueza (Badge #314) at the San Mateo 15 County Jail – Maguire Facility, (300 Bradford Street, Redwood City, CA 94063). The 16 Clerk shall also mail a copy of this Order to Plaintiff. 17 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 18 Procedure requires them to cooperate in saving unnecessary costs of service of the 19 summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this 20 action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail 21 to do so, they will be required to bear the cost of such service unless good cause shown for 22 their failure to sign and return the waiver form.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, 11 Case No. 18-03972 BLF (PR) Plaintiff, 12 ORDER OF PARTIAL DISMISSAL AND SERVICE; DIRECTING v. 13 DEFENDANT TO FILE
DISPOSITIVE MOTION OR 14 A. ARQUEZA, NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendant. CLERK
18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983. The Court twice dismissed the complaint with leave to amend for 20 Plaintiff to comply with Rules 18(a) and 20(a) of the Federal Rules of Civil Procedure. 21 (Docket Nos. 10, 19.) Plaintiff has filed a second amended complaint. (Docket No. 23, 22 hereinafter “SAC.”) 23 24 DISCUSSION 25 A. Standard of Review 26 A federal court must conduct a preliminary screening in any case in which a 27 prisoner seeks redress from a governmental entity or officer or employee of a 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 9 B. Plaintiff’s Claims 10 Plaintiff claims that on or about April 30, 2018, while detained in the Sheriff’s 11 custody at the San Mateo County – Maguire Correctional Facility, he was repeatedly 12 beaten and battered by Defendant Sheriff Deputy A. Arqueza (Badge #314), in retaliation 13 for requesting a jail grievance form. (SAC at 4.) Plaintiff claims Defendant Arqueza 14 threw him onto the ground, placed his body weight and knees onto his head, back, legs and 15 arms, while handcuffing Plaintiff behind his back, and that the handcuffs were also applied 16 extremely tight. (Id.) Plaintiff claims that all times, he did not resist nor pose a threat, and 17 that he was complaint to Defendant Arqueza’s commands prior and after being beaten. 18 (Id.) Plaintiff claims that Defendant then placed him, barefoot, in a holding cell where he 19 then threatened Plaintiff with violence. (Id.) Plaintiff claims that Defendant Arqueza 20 prevented him from seeking medical attention while in the holding cell. (Id. at 5.) 21 Plaintiff also claims that Defendant Arqueza exposed him to unsanitary conditions in the 22 holding cell, and later transferred him to a different housing unit and assigned him to a cell 23 with worse conditions of confinement. (Id.) Based on these actions, Plaintiff claims 24 Defendant Arqueza violated his rights under the First, Eighth, and Fourteenth 25 Amendments. (Id. at 4-5.) Plaintiff seeks declaratory and injunctive relief as well as 26 damages. (Id. at 6.) Liberally construed, Plaintiff’s allegations are sufficient to state a 1 force, see Farmer v. Brennan, 511 U.S. 824, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 2 6 (1992), deliberate indifference to serious medical needs, see Estelle v. Gamble, 429 U.S. 3 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), and unsanitary 4 prison conditions, see Farmer, 511 U.S. at 832. 5 However, the Court finds Plaintiff fails to state a retaliation claim under the First 6 Amendment. Plaintiff was already advised that in order to state a retaliation claim, he 7 must allege five basic elements under Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 8 2005). (Docket No. 19 at 8-9.) Here again, Plaintiff fails to allege that Defendant’s 9 adverse actions chilled the exercise of his First Amendment rights and that the action did 10 not reasonably advance a legitimate correctional goal. (Id. at 9.) Plaintiff has already been 11 afforded two opportunities to amend, and this Court has broad discretion to deny leave to 12 amend where Plaintiff has already been granted leave to file an amended complaint. See 13 Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003); Ferdik v. Bonzelet, 963 14 F.2d 1258, 1261 (9th Cir. 1992). Accordingly, Plaintiff shall not be afforded any further 15 opportunity to correct this deficiency. 16 Plaintiff also claims that Defendant Arqueza confiscated and reviewed his property 17 outside of his presence, including legal documents, in order to prevent Plaintiff from 18 initiating a complaint and assisting in ongoing criminal proceedings in violation of the 19 First and Sixth Amendments. (SAC at 5.) For the same reason discussed above, Plaintiff 20 still fails to state a First Amendment retaliation based on these allegations. Nor does the 21 Court see any basis to support a Sixth Amendment claim because this action does not 22 involve any ongoing criminal prosecution against Plaintiff. Accordingly, the Sixth 23 Amendment claim must be dismissed for failure to state a claim for relief. 24 Lastly, Plaintiff claims Defendant Arquez presented him with false disciplinary 25 charges without a hearing or justification which resulted in the loss of various privileges. 26 violating his rights under the First, Eighth, and Fourteenth Amendments. (Id.) Liberally 1 Amendment, see Wolff v. McDonnell, 418 U.S. 539, 556 (1974), but no claim under the 2 First or Eighth Amendments. 3 4 CONCLUSION 5 For the reasons state above, the Court orders as follows: 6 1. Plaintiff’s claims under the First and Sixth Amendments are DISMISSED for 7 failure to state a claim. The only claims that will proceed in this action are under the 8 Eighth Amendment for excessive force, deliberate indifference to serious medical needs, 9 and unsanitary conditions, as well as a due process claim for an allegedly false and 10 unjustified disciplinary action. 11 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 12 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 13 of the second amended complaint, (Docket No. 23), all attachments thereto, and a copy of 14 this order upon Defendant Deputy Sheriff A. Arqueza (Badge #314) at the San Mateo 15 County Jail – Maguire Facility, (300 Bradford Street, Redwood City, CA 94063). The 16 Clerk shall also mail a copy of this Order to Plaintiff. 17 3. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 18 Procedure requires them to cooperate in saving unnecessary costs of service of the 19 summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this 20 action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail 21 to do so, they will be required to bear the cost of such service unless good cause shown for 22 their failure to sign and return the waiver form. If service is waived, this action will 23 proceed as if Defendants had been served on the date that the waiver is filed, except that 24 pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer 25 before sixty (60) days from the day on which the request for waiver was sent. (This 26 allows a longer time to respond than would be required if formal service of summons is 1 form that more completely describes the duties of the parties with regard to waiver of 2 service of the summons. If service is waived after the date provided in the Notice but 3 before Defendants have been personally served, the Answer shall be due sixty (60) days 4 from the date on which the request for waiver was sent or twenty (20) days from the date 5 the waiver form is filed, whichever is later. 6 4. No later than ninety-one (91) days from the date this order is filed, 7 Defendants shall file a motion for summary judgment or other dispositive motion with 8 respect to the claims in the complaint found to be cognizable above. 9 a. Any motion for summary judgment shall be supported by adequate 10 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 11 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 12 qualified immunity found, if material facts are in dispute. If any Defendant is of the 13 opinion that this case cannot be resolved by summary judgment, he shall so inform the 14 Court prior to the date the summary judgment motion is due. 15 b. In the event Defendants file a motion for summary judgment, the 16 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 17 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 18 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 19 5. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 20 and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 21 motion is filed. 22 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 23 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 24 must come forward with evidence showing triable issues of material fact on every essential 25 element of his claim). Plaintiff is cautioned that failure to file an opposition to 26 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 1 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 2 || F.3d 651, 653 (9th Cir. 1994). 3 6. Defendants shall file a reply brief no later than fourteen (14) days after 4 || Plaintiff's opposition is filed. 5 7. The motion shall be deemed submitted as of the date the reply brief is due. 6 || No hearing will be held on the motion unless the Court so orders at a later date. 7 8. All communications by the Plaintiff with the Court must be served on 8 || Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 9 || copy of the document to Defendants or Defendants’ counsel. 10 9. Discovery may be taken in accordance with the Federal Rules of Civil 11 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 2 Rule 16-1 is required before the parties may conduct discovery. 13 10. is Plaintiffs responsibility to prosecute this case. Plaintiff must keep the S 14 |] court informed of any change of address and must comply with the court’s orders in a 3 15 || timely fashion. Failure to do so may result in the dismissal of this action for failure to a 16 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). 3 17 11. Extensions of time must be filed no later than the deadline sought to be 18 || extended and must be accompanied by a showing of good cause. 19 IT IS SO ORDERED 20 Dated: December 16, 2019 hom Lh hone BETH LABSON FREEMAN 71 United States District Judge 22 23 24 25 Order of Partial Dismissal and Svc PRO-SE\BLF\CR.18\03972S addozai_svc 26 27