Siguenza v. CDCR

• Court: District Court, N.D. California
• Decided: September 12, 2024
• Docket: 4:23-cv-06006
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARLON EDGARDO SIGUENZA, Case No. 23-cv-06006-HSG

8 Plaintiff, ORDER OF PARTIAL SERVICE; DISMISSING CERTAIN CLAIMS AND 9 v. DEFENDANTS WITH LEAVE TO AMEND; DENYING MOTION TO 10 CDCR, et al., RELATE 11 Defendants. Re: Dkt. No. 5

12 13 Plaintiff, an inmate at Correctional Training Facility, has filed a pro se action pursuant to 14 42 U.S.C. § 1983. Plaintiff’s complaint (Dkt. No. 1) is now before the Court for review under 28 15 U.S.C. § 1915A.1 This order also denies Plaintiff’s motion to relate. Dkt. No. 5. Plaintiff has 16 been granted leave to proceed in forma pauperis in a separate 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 United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 1 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 2 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 3 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 4 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 5 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 6 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 7 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 9 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 10 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 11 U.S. 42, 48 (1988). 12 B. Complaint 13 The complaint names as defendants the California Department of Corrections and 14 Rehabilitations (“CDCR”) and the following Correctional Training Facility (“CTF”) correctional 15 officials: prison guard S. Mora, Investigative Services Unit (“ISU”) sergeant J. Peffley, 16 correctional sergeant J. Gomez, and ISU officer Z. Brown. 17 The complaint makes the following relevant factual allegations. 18 In or around December 2020, Plaintiff assisted his cellmate, inmate Gonzalez, in preparing 19 a grievance regarding property that went missing when inmate Gonzalez was transferred to the 20 gym for COVID quarantine. On January 25, 2021, defendant Gomez conducted a search of 21 Plaintiff’s cell and claimed to have found the lost items, even though the items produced by 22 defendant Gomez were different in brand and age from inmate Gonzalez’s missing property. 23 Defendant Gomez issued inmate Gonzalez an RVR for these two items. On February 6, 2021, 24 defendant Gomez approached inmate Gonzalez with two old, used items, and asked inmate 25 Gonzalez to accept these items as replacements for the lost property. When inmate Gonzalez 26 refused, defendant Gomez complained that inmate Gonzalez was making him work too much. 27 On February 4, 2021, CTF officials raided seven cells. A majority of these cells housed 1 January 25, 2021 incident. Defendants Mora and Brown searched Plaintiff’s cell. Defendants 2 Brown and Mora forced Plaintiff and his cellmate to step outside the cell without their face masks 3 during the search, despite rules requiring that inmates wear face masks while outside their cells. 4 Plaintiff observed another inmate forced to exit his cell without a facemask as an officer searched 5 the inmate’s cell. During the cell search, defendant Mora confiscated a tablet from Plaintiff. After 6 defendants Mora and Brown completed the cell search, defendant Mora told Plaintiff, “So you 7 guys like to file 602s huh? You’ll be getting a writeup.” The February 4, 2021 raids were 8 intended to expose Hispanic inmates to COVID, in the same manner as a mass cell search 9 conducted during mid-2020 that targeted Black inmates, forced the Black inmates to exit their 10 cells without facemasks, and resulted in COVID spreading throughout CTF, with a total of over 11 2700 COVID infections. 12 Subsequent to these cell searches, Plaintiff was issued a rules violation report (“RVR”) for 13 possession of a wireless device component for the tablet confiscated during the February 4, 2021 14 search. Inmate Gonzalez was found guilty of the RVR. Plaintiff pled guilty to the RVR to avoid 15 being issued further RVRs and to avoid further harassment from correctional officials. But 16 Plaintiff states that defendants Mora and Peffley could have altered the tablet and requests that the 17 RVR be voided because it is “the fruit of a poisonous tree.” 18 In 2022 and 2023, defendant Mora threatened Plaintiff on three occasions: “If you file that 19 lawsuit, the same thing will happen as it did to Bess.” Inmate Bess’s cell had also been searched 20 on February 4, 2021. Defendant Mora had retaliated against inmate Bess for exercising his First 21 Amendment rights by placing false evidence in inmate Bess’s disciplinary file to hinder inmate 22 Bess from being granted parole. 23 Defendant Peffley was the supervising Institutional Services Unit sergeant during the 24 February 2021 raid, and he reviewed the RVR that Plaintiff was issued as a result of the raid. 25 Plaintiff seeks the following relief: an order enjoining Defendants from engaging in the 26 unlawful conduct alleged in the complaint; an order to stop longstanding racially discriminatory 27 practices employed by the CDCR intended to stop litigation or extend prisoners’ time in prison; 1 damages from each defendant; $500,000 each in mental anguish and punitive damages from each 2 defendants; economic and non-economic damages; loss of earnings, past and future; costs of suit; 3 interest; and paralegal fees. 4 C. Screening Complaint 5 1. Retaliation Claims (Counts 3 and 6) 6 The following allegations state cognizable First Amendment retaliation claims against 7 defendant Mora: (1) on February 4, 2021, defendant Mora searched Plaintiff’s cell in retaliation 8 for Plaintiff assisting inmate Gonzalez in filing a grievance in November 2020, as evidenced by 9 defendant Mora stating immediately after the search, “You guys like to file 602s, right? You’ll be 10 getting a writeup;” and (2) in 2022 and 2023, defendant Mora warned Plaintiff against filing 11 lawsuits. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (“Within the prison context, a 12 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a 13 state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 14 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 15 (5) the action did not reasonably advance a legitimate correctional goal.”) (footnote omitted). 16 However, the complaint does not state a retaliation claim against defendants Gomez, 17 Brown, or Peffley. 18 Defendant Gomez. The conclusory allegation that all defendants are “directly involved” 19 in the February 4, 2021 cell search, and that all defendants were involved in a larger conspiracy is 20 insufficient to link defendant Gomez to the alleged retaliatory actions taken by defendant Mora. 21 Outside of the conspiracy allegation, there is no allegation that defendant Gomez retaliated 22 against, or otherwise took adverse action, against Plaintiff. The actions taken by defendant Gomez 23 – the January 25, 2021 search of the cell shared by inmate Gonzalez and Plaintiff allegedly to 24 locate inmate Gonzalez’s property or retaliate against defendant Gomez, and the attempts on 25 January 25 and February 6, 2021 to coerce inmate Gonzalez into accepting old, used, and incorrect 26 items as replacements for his lost property – were adverse to inmate Gonzalez, not to Plaintiff. In 27 addition, there are no allegations from which it can be reasonably inferred that defendant Gomez 1 activity. 2 Defendant Brown. The conclusory allegation that all defendants are “directly involved” 3 in the February 4, 2021 cell search, and that all defendants were involved in a conspiracy is 4 insufficient to link defendant Brown to the alleged retaliatory actions taken by defendant Mora. 5 Outside of the conspiracy allegation, there is also no allegation that defendant Brown retaliated 6 against, or otherwise took adverse action, against Plaintiff. While defendant Brown participated in 7 the February 4, 2021 cell search, defendant Brown is not alleged to have made any statements 8 indicating that he was aware of Plaintiff’s grievance activity. 9 Defendant Peffley. The conclusory allegation that all defendants are “directly involved” 10 in the February 4, 2021 cell search, and that all defendants were involved in a conspiracy is 11 insufficient to link defendant Peffley to the alleged retaliatory actions taken by defendant Mora. 12 Outside of the conspiracy allegation, there is also no allegation that defendant Peffley retaliated 13 against, or otherwise took adverse action, against Plaintiff. The actions taken by defendant Peffley 14 – searching inmate Bess’s cell while defendants Mora and Brown were searching Plaintiff’s cell – 15 was adverse to inmate Bess, not to Plaintiff. In addition, there are no allegations from which it can 16 be reasonably inferred that defendant Peffley knew that Plaintiff had drafted inmate Gonzalez’s 17 grievance or otherwise engaged in protected activity. 18 The First Amendment retaliation claims against defendants Gomez, Brown, and Peffley are 19 DISMISSED with leave to amend. 20 2. Remaining Claims 21 The remaining claims are DISMISSED for the following reasons. 22 a. 42 U.S.C. §§ 1985, 1986 (Counts 1, 2, 6) 23 In Counts 1, 2, and 6, the complaint alleges that the individual defendants – officers Mora, 24 Peffley, Gomez, and Brown – conspired to violate Plaintiff’s civil rights as follows. Defendant 25 Gomez conspired with Mora, Brown, and Peffley to have Plaintiff’s cell searched in retaliation for 26 Plaintiff assisting inmate Gonzalez file a grievance regarding lost property. Defendant Peffley is 27 one of the “prime movers” in this conspiracy, as evidenced by his misconduct towards inmate 1 4, 2021 cell search. The February 4, 2021 cell search targeted Hispanic inmates, and was part of a 2 larger conspiracy / attempt to deter Hispanic inmates from pursing litigation against prison 3 officials. 4 42 U.S.C. § 1985 prohibits conspiracies to interfere with certain civil rights. A claim 5 under this section must allege facts to support the allegation that defendants conspired together. 6 Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff's 7 conspiracy claims fail to state a claim because they are “vague and conclusory allegations of 8 official participation in civil rights violations,” which is insufficient to state a conspiracy claim. 9 See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (conclusory allegations of conspiracy 10 insufficient to support claim under section 1983 or 1985). The complaint does not allege facts 11 from which it can be reasonably inferred that defendants Gomez, Brown, and Peffley conspired to 12 retaliate or discriminate against Plaintiff. Defendants Brown and Peffley are not alleged to have 13 made any statements indicating that they were aware of Plaintiff’s protected activity, much less 14 that they conducted or authorized the cell search in retaliation for the protected activity. 15 Defendants Brown and Peffley also are not alleged to have made any statements indicating that 16 they discriminated against Plaintiff because he is Hispanic. Even as alleged, Defendant Gomez 17 was not involved in the cell searches on February 4, 2021; has not made any statements indicating 18 awareness of Plaintiff’s protected activity; and appears to have had no interaction with Plaintiff, 19 other than searching Plaintiff’s cell in January 2021 in response to Gonzalez’s grievance and with 20 the alleged intent to retaliate against inmate Gonzalez. While Defendant Brown searched 21 Plaintiff’s cell on February 4, 2021, even as alleged he did not make any statements indicating 22 awareness of Plaintiff’s protected activity; and appears to have had no other interaction with 23 Plaintiff. Even as alleged, Defendant Peffley did not make any statements indicating awareness of 24 Plaintiff’s protected activity; and appears to have had no interaction with Plaintiff. The fact that 25 defendant Peffley participated in the February 4, 2021 cell searches by searching inmate Bess’ cell 26 and reviewing the disciplinary violation issued to Plaintiff as part of the disciplinary process is 27 insufficient to support an allegation that all the February 4, 2021 cell searches were motivated by 1 cognizable Title VI or equal protection claim. As currently pled, Plaintiff’s conspiracy claims are 2 insufficient to allege a claim of conspiracy under 42 U.S.C. §§ 1983, 1985, 1986. Plaintiff’s 3 conspiracy claims are DISMISSED with leave to amend. Should Plaintiff choose to replead his 4 conspiracy claims, Plaintiff is advised that to state a cognizable claim for conspiracy under 42 5 U.S.C. §§ 1983, 1985, 1986, Plaintiff must allege facts with sufficient particularity to show an 6 agreement or a meeting of the minds to violate his constitutional rights. See, e.g., Margolis v. 7 Ryan, 140 F.3d 850, 853 (9th Cir. 1998). 8 b. Title VI and Equal Protection Claim (Count 4) 9 The complaint alleges the February 4, 2021 cell searches / raid targeted Hispanic inmates, 10 and therefore constituted racial discrimination on the part of all defendants (CDCR and the 11 individual defendants), in violation of Title VI, 42 U.S.C. § 2000d, et seq., and the Equal 12 Protection Clause. To state a Title VI claim for damages, “a plaintiff need only allege that (1) the 13 entity involved is engaging in racial discrimination; and (2) the entity involved is receiving federal 14 financial assistance.” Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994), 15 overruled in part on other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 16 1131 (9th Cir. 2001). To state an Equal Protection claim, the plaintiff must allege that the 17 defendant state actor acted at least in part because of plaintiff’s membership in a protected class. 18 See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). 19 The complaint proffers the following allegations in support of these claims. The February 20 4, 2021 raid targeted Hispanic inmates because the raid took place in C Wing and a majority of the 21 C Wing inmates are Hispanic; Plaintiff is Hispanic; and two of the inmates who had their cells 22 raided/searched that day are Hispanic. Defendants Peffly and Brown are white males “who seem 23 to be white supremacists;” the July 20, 2020 raid that targeted Black inmates and resulted in 24 COVID spreading throughout CTF was overseen by Warden Koenig, who is a white male. CDCR 25 agents have internalized racist attitudes which results in hyper criminalization against Hispanic 26 inmates, a belief that Hispanic lives and rights don’t matter, and dictates to CDCR agents that it is 27 permissible to infringe on Plaintiff’s constitutional rights and even expose him to risk of 1 The complaint’s allegations do not lead to a reasonable inference that either the CDCR or 2 the individual defendants authorized or conducted the February 4, 2021 cell search because 3 Plaintiff is Hispanic or to target Hispanic inmates. If the C Wing inmate population is 4 predominantly Hispanic, any large-scale cell search in C Wing would result in Hispanic inmates 5 being disproportionately impacted. The complaint does not contain allegations plausibly 6 explaining why a search of C Wing would suggest discrimination. Moreover, given that there is 7 no allegation that any of the inmates whose cells were searched had previously filed lawsuits, it 8 cannot be reasonably inferred from the complaint that Defendants were conspiring to deter 9 Hispanic inmates from filing lawsuits against the CDCR. The Court DISMISSES the Title VI 10 claim and Equal Protection Claim with leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 11 (9th Cir. 2000) (district court should grant leave to amend unless pleading could not possibly be 12 cured by allegation of other facts). 13 c. Eighth Amendment Claim for Exposure to COVID (Count 5) 14 The complaint alleges that defendants Mora, Peffley, Gomez, and Brown exposed Plaintiff 15 to significant harm, in violation of the Eighth Amendment, when they exposed him to COVID by 16 forcing him to step outside of his cell during the cell search without a facemask at a time when 17 facemasks were mandatory. This allegation fails to state a claim against defendant Peffley, as he 18 was not involved in the search of Plaintiff’s cell and did not force Plaintiff to forgo a face mask. 19 More generally, this allegation fails to state an Eighth Amendment claim. The failure of prison 20 officials to protect inmates from dangerous conditions at the prison violates the Eighth 21 Amendment when two requirements are met: (1) the deprivation alleged is, objectively, 22 sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate 23 health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prison official is deliberately 24 indifferent if he knows of and disregards an excessive risk to inmate health or safety by failing to 25 take reasonable steps to abate it. Id. at 837. The official must both be aware of facts from which 26 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 27 that inference. See id. at 837. Neither negligence nor gross negligence will constitute deliberate 1 a facemask was an objectively serious deprivation. And even if the temporary deprivation of a 2 facemask were a serious deprivation, it would only rise to the level of an Eighth Amendment 3 violation if defendants Mora and Brown were aware of facts from which the inference could be 4 drawn that Plaintiff had a substantial risk of serious harm from contracting COVID as a result of 5 the temporary deprivation of a facemask. This claim is DISMISSED with leave to amend to 6 remedy the identified deficiency, if Plaintiff believes he can truthfully do so.

7 d. Eighth Amendment Claim for Exposure to Significant Harm and Bane 8 Act (Count 7) 9 Count 7 of the complaint alleges that defendant Mora exposed Plaintiff to significant harm 10 of danger from other inmates because he told Plaintiff, “If you file that lawsuit, the same thing will 11 happen to you as did to inmate Bess,” implying that he would spread false rumors that Plaintiff 12 was an informant, and being labelled as an informant would Plaintiff at risk from other inmates. 13 The complaint alleges that this violated the Eighth Amendment’s requirement that correctional 14 officials protect inmates from being harmed by other inmates, and violated the Tom Bane Civil 15 Rights Act. This allegation fails to state either an Eighth Amendment or Bane Act claim as a 16 matter of law. Allegations of mere threats, as is the case here, are not cognizable under § 1983. 17 See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute constitutional 18 wrong, nor do allegations that naked threat was for purpose of denying access to courts compel 19 contrary result). And Plaintiff has not been injured by defendant Mora, as is required to state a 20 Bane Act claim. Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 882 (Cal. Ct. 21 App. 2007) (elements of Bane Act claim are: (1) defendant interfered with or attempted to 22 interfere with plaintiff’s constitutional or statutory right by threatening or committing violent acts; 23 (2) plaintiff reasonably believed that if he or she exercised his or her constitutional right, 24 defendant would commit violence against him or her or his or her property; (3) defendant injured 25 plaintiff or plaintiff’s property to prevent him or her from exercising his or her constitutional right 26 or retaliate against plaintiff for having exercised his or her constitutional right; (4) plaintiff was 27 harmed; and (5) defendant’s actions were a substantial factor in causing plaintiff’s harm) (citing 1 claim with prejudice because leave to amend would be futile. 2 e. Interference with Liberty Interests (Count 8) 3 The complaint alleges that the RVR issued by defendants Mora and Peffley interfered with 4 Plaintiff’s Fifth and Fourteenth Amendment liberty interest in parole because it makes him less 5 likely to obtain parole, and that defendants Mora, Peffley, Gomez, and Brown are liable because 6 of their role in the conspiracy. This claim is DISMISSED. Because the decision to release a 7 prisoner rests on a myriad of considerations and the prisoner is afforded procedural protection at 8 his parole hearing in order to explain the circumstances behind his misconduct record, the 9 Supreme Court has found that disciplinary actions do not give rise to a protected liberty interest 10 just because of the impact the actions may have on a parole decision. Sandin v. Conner, 515 U.S. 11 472, 487 (1995) (“The chance that a finding of misconduct will alter the balance is simply too 12 attenuated to invoke the procedural guarantees of the Due Process Clause.”). The dismissal of this 13 claim is with prejudice because amendment would be futile. 14 D. Motion to Relate 15 Plaintiff has filed a motion to relate this action to C No. 22-cv-0341 JSC, Bess v. Peffley, 16 arguing that both actions involve defendants Peffley and Mora and involve retaliation. See 17 generally Dkt. No. 5. The Court DENIES the motion to relate. N.D. Cal. L.R. 3-12(b) provides 18 that a motion to relate should be filed in the lowest-numbered case. Here, C No. 22-cv-0341 JSC, 19 Bess v. Peffley, is the lower-numbered case, and any request to relate cases to Bess should be filed 20 in Bess, not in the later-filed actions. 21 CONCLUSION 22 For the reasons set forth above, the Court orders as follows. 23 1. The following defendant(s) shall be served: Correctional Training Facility officer 24 S. Mora. 25 2. Service on the listed defendant(s) shall proceed under the California Department of 26 Corrections and Rehabilitation’s (“CDCR”) e-service program for civil rights cases from prisoners 27 in the CDCR’s custody. In accordance with the program, the Clerk is directed to serve on the 1 service, a CDCR Report of E-Service Waiver form and a summons. The Clerk also shall serve a 2 copy of this order on the Plaintiff. 3 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 4 provide the court a completed CDCR Report of E-Service Waiver advising the court which 5 defendant(s) listed in this order will be waiving service of process without the need for service by 6 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 7 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 8 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 9 a waiver of service of process for the defendant(s) who are waiving service. 10 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 11 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 12 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 13 of this order, the summons, and the operative complaint for service upon each defendant who has 14 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 15 Service Waiver. 16 3. The complaint states a cognizable First Amendment retaliation claim (Count 1) 17 against defendant Mora. 18 4. The Court DISMISSES the following claims with leave to amend: the First 19 Amendment retaliation claim (Count 1) against defendants Gomez, Brown, and Peffley; the 20 conspiracy claims set forth Counts 1, 2, and 6; the Eighth Amendment claim for exposure to 21 COVID (Count 5). If Plaintiff wishes to file an amended complaint, he must file the amended 22 complaint within twenty-eight (28) days of the date of this order. The amended complaint must 23 include the caption and civil case number used in this order, Case No. 23-6006 HSG (PR) and the 24 words “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff 25 must answer all the questions on the form in order for the action to proceed. An amended 26 complaint completely replaces the previous complaints. See Lacey v. Maricopa Cty., 693 F.3d 27 896, 925 (9th Cir. 2010). Accordingly, Plaintiff must include in his amended complaint all the 1 found cognizable above and the defendant(s) ordered served above. Plaintiff may not incorporate 2 material from the prior complaint(s) by reference. Failure to file an amended complaint in 3 accordance with this order in the time provided will result in this action proceeding solely on the 4 First Amendment claim against defendant Mora, and the dismissal of the remaining defendants. 5 The Clerk shall include two copies of the court’s complaint form with a copy of this order to 6 Plaintiff. 7 5. The Court DISMISSES the following claims with prejudice: the Title VI and Equal 8 Protection claim (Count 4); the Eighth Amendment claim and Bane Act claim for exposure to 9 significant harm (Count 7); and the Interference with Liberty Interests claim (Count 8). 10 6. The Court DENIES the motion to relate. Dkt. No. 5. 11 7. In order to expedite the resolution of this case, the Court orders as follows: 12 a. No later than 91 days from the date this order is filed, Defendant(s) must 13 file and serve a motion for summary judgment or other dispositive motion. If Defendant(s) is(are) 14 of the opinion that this case cannot be resolved by summary judgment, Defendants must so inform 15 the Court prior to the date the motion is due. A motion for summary judgment also must be 16 accompanied by a Rand notice so that Plaintiff will have fair, timely, and adequate notice of what 17 is required of him in order to oppose the motion. Woods v. Carey, 684 F.3d 934, 939 (9th Cir. 18 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be 19 served concurrently with motion for summary judgment).2 20 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 21 must be filed with the Court and served upon Defendant(s) no later than 28 days from the date the 22 motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment 23 provided later in this order as he prepares his opposition to any motion for summary judgment. 24 Defendant(s) shall file a reply brief no later than 14 days after the date the opposition is filed. The 25 2 If Defendant(s) assert(s) that Plaintiff failed to exhaust his available administrative remedies as 26 required by 42 U.S.C. § 1997e(a), Defendant(s) 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 27 Cir. 2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which 1 motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on 2 the motion. 3 8. Plaintiff is advised that a motion for summary judgment under Rule 56 of the 4 Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must 5 do in order to oppose a motion for summary judgment. Generally, summary judgment must be 6 granted when there is no genuine issue of material fact – that is, if there is no real dispute about 7 any fact that would affect the result of your case, the party who asked for summary judgment is 8 entitled to judgment as a matter of law, which will end your case. When a party you are suing 9 makes a motion for summary judgment that is properly supported by declarations (or other sworn 10 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 11 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 12 as provided in Rule 56(c), that contradict the facts shown in the defendants’ declarations and 13 documents and show that there is a genuine issue of material fact for trial. If you do not submit 14 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 15 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v. 16 Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A). (The Rand notice above does 17 not excuse Defendants’ obligation to serve said notice again concurrently with a motion for 18 summary judgment. Woods, 684 F.3d at 939). 19 9. All communications by Plaintiff with the Court must be served on Defendants’ 20 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard 21 any document which a party files but fails to send a copy of to his opponent. Until Defendants’ 22 counsel has been designated, Plaintiff may mail a true copy of the document directly to 23 Defendants but once Defendants are represented by counsel, all documents must be mailed to 24 counsel rather than directly to Defendants. 25 10. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 26 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 27 before the parties may conduct discovery. 1 Court informed of any change of address and must comply with the Court’s orders in a timely 2 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 3 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 4 || pending case every time he is moved to a new facility. 5 12. Any motion for an extension of time must be filed no later than the deadline sought 6 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 7 he must include the case name and case number for this case on any document he submits to the 8 || Court for consideration in this case. 9 This order terminates Dkt. No. 5. 10 IT IS SO ORDERED. 11 Dated: 9/12/2024 12 □ S. GILLIAM, JR. i 13 United States District Judge © 15 16

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