1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DWAYNE C SIMS, Case No. 22-cv-02735-TLT
8 Plaintiff, ORDER OF SERVICE; 9 v. DENYING APPOINTMENT OF 10 A TURNIGAN, COUNSEL 11 Defendant.
12 13 Plaintiff, a prisoner at Correctional Training Facility (CTF), has filed a pro se complaint 14 under 42 U.S.C. § 1983 alleging that defendant correctional officer Turnigan assaulted him and 15 “verbally disrespected” him at CTF on March 1, 2021. ECF No. 1. Plaintiff’s complaint is before 16 the Court for screening pursuant to pursuant to 28 U.S.C. § 1915A. 17 Plaintiff’s motion for leave to proceed in forma pauperis will be granted in a separate 18 written Order. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 22 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 24 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 25 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 26 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 27 989, 993 (9th Cir. 2020). 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) 9 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 10 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. Legal Claims 13 Plaintiff states that he went to his work assignment in January and February 2021 without 14 incident, as a critical worker. ECF No. 1 at 4-5. On the day of the incident forming the basis of 15 this lawsuit, defendant Turnigan told him to go back to his cell when he was on his way to his 16 work assignment. Id. at 5. Plaintiff proceeded toward his job assignment, and defendant 17 continued to tell him to “lock it up.” Id. at 6. He requested that defendant call in his 18 lieutenant/sergeant as a mediator to assist in resolving their dispute over whether he was permitted 19 to go to work. Id. Defendant refused this request and again told plaintiff to “lock it up.” Id. 20 Plaintiff continued to ask to see his superior. Defendant then agreed to call his superior, but 21 informed plaintiff that he would arrest him. Plaintiff said “Okay, that’s fine with me, let’s go!” 22 Id. Defendant then gave plaintiff a verbal command to turn around and cuff up, with which 23 plaintiff complied. Defendant then “aggressively—with the use of force, handcuffed [plaintiff’s] 24 right wrist” and instructed plaintiff to drop his food and folder of legal documents. Id. Plaintiff 25 responded, “Are you seriously crazy!” Plaintiff asked his cellmate to come take his food and 26 documents, after which defendant “decided to aggressively grab [his] lower forearm and wrist 27 with both of his hands, and with the use of force, pulled up on [his] arm hard, yanking and jerking 1 hand.” Id. at 7. While handcuffing his left wrist, defendant “continued to be aggressive by 2 twisting and bending [his] left wrist hard” and hurting plaintiff. Id. The two continued to have a 3 verbal altercation, after which plaintiff was interviewed by Sergeant Glaze and examined by 4 medical staff, he provided a video statement of the arrest, assault, and injury to Captain Handley, 5 and was returned to his cell. Id. at 8. Plaintiff alleges that defendant Turnigan has a “history of 6 racially profiling and targeting other groups of inmates.” Id. Plaintiff has a sore left wrist and 7 ongoing shoulder pain and numbness requiring surgery. 8 Plaintiff seeks “‘injunctive relief’ related to the use of excessive force,” relief from his 9 Rule Violation Report, and that defendant Turnigan “be held accountable . . . by accepting to 10 resign from his position as an correctional officer, and serve the amount of time given under the 11 crime penalty commitment.” ECF No. 1 at 3-4. He also seeks damages. 12 Liberally construed, plaintiff has stated a cognizable claim against defendant Turnigan of 13 excessive force in violation of the Eighth Amendment. See Whitley v. Albers, 475 U.S. 312, 319 14 (1986) (Eighth Amendment prohibits excessive force in the form of “unnecessary and wanton 15 infliction of pain” on a convicted prisoner). 16 C. Plaintiff’s Request for Counsel 17 Plaintiff’s request for appointment of counsel (ECF No. 9) is DENIED. The Ninth Circuit 18 has held that a district court may ask counsel to represent an indigent litigant only in “exceptional 19 circumstances,” the determination of which requires an evaluation of both (1) the likelihood of 20 success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of 21 the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 22 1991). Plaintiff appears able to present his claims adequately, and the issues are not complex, 23 therefore the request is denied without prejudice. 24 CONCLUSION 25 For the foregoing reasons, the Court orders as follows: 26 1. The Court ORDERS that service on defendant A. Turnigan, second watch 27 correctional officer at CTF Delta Wing Central Facility, shall proceed under the California 1 from prisoners in the CDCR’s custody. In accordance with the program, the Clerk is directed to 2 serve on the CDCR via email the following documents: the operative complaint (Dkt. No. 1), this 3 Order of Service, a CDCR Report of E-Service Waiver form, and a summons. The Clerk also 4 shall serve a copy of this order on the Plaintiff. 5 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 6 provide the court a completed CDCR Report of E-Service Waiver advising the court which 7 defendant(s) listed in this order will be waiving service of process without the need for service by 8 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 9 could not be reached.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DWAYNE C SIMS, Case No. 22-cv-02735-TLT
8 Plaintiff, ORDER OF SERVICE; 9 v. DENYING APPOINTMENT OF 10 A TURNIGAN, COUNSEL 11 Defendant.
12 13 Plaintiff, a prisoner at Correctional Training Facility (CTF), has filed a pro se complaint 14 under 42 U.S.C. § 1983 alleging that defendant correctional officer Turnigan assaulted him and 15 “verbally disrespected” him at CTF on March 1, 2021. ECF No. 1. Plaintiff’s complaint is before 16 the Court for screening pursuant to pursuant to 28 U.S.C. § 1915A. 17 Plaintiff’s motion for leave to proceed in forma pauperis will be granted in a separate 18 written Order. 19 DISCUSSION 20 A. Standard of Review 21 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 22 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 24 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 25 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 26 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 27 989, 993 (9th Cir. 2020). 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) 9 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 10 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. Legal Claims 13 Plaintiff states that he went to his work assignment in January and February 2021 without 14 incident, as a critical worker. ECF No. 1 at 4-5. On the day of the incident forming the basis of 15 this lawsuit, defendant Turnigan told him to go back to his cell when he was on his way to his 16 work assignment. Id. at 5. Plaintiff proceeded toward his job assignment, and defendant 17 continued to tell him to “lock it up.” Id. at 6. He requested that defendant call in his 18 lieutenant/sergeant as a mediator to assist in resolving their dispute over whether he was permitted 19 to go to work. Id. Defendant refused this request and again told plaintiff to “lock it up.” Id. 20 Plaintiff continued to ask to see his superior. Defendant then agreed to call his superior, but 21 informed plaintiff that he would arrest him. Plaintiff said “Okay, that’s fine with me, let’s go!” 22 Id. Defendant then gave plaintiff a verbal command to turn around and cuff up, with which 23 plaintiff complied. Defendant then “aggressively—with the use of force, handcuffed [plaintiff’s] 24 right wrist” and instructed plaintiff to drop his food and folder of legal documents. Id. Plaintiff 25 responded, “Are you seriously crazy!” Plaintiff asked his cellmate to come take his food and 26 documents, after which defendant “decided to aggressively grab [his] lower forearm and wrist 27 with both of his hands, and with the use of force, pulled up on [his] arm hard, yanking and jerking 1 hand.” Id. at 7. While handcuffing his left wrist, defendant “continued to be aggressive by 2 twisting and bending [his] left wrist hard” and hurting plaintiff. Id. The two continued to have a 3 verbal altercation, after which plaintiff was interviewed by Sergeant Glaze and examined by 4 medical staff, he provided a video statement of the arrest, assault, and injury to Captain Handley, 5 and was returned to his cell. Id. at 8. Plaintiff alleges that defendant Turnigan has a “history of 6 racially profiling and targeting other groups of inmates.” Id. Plaintiff has a sore left wrist and 7 ongoing shoulder pain and numbness requiring surgery. 8 Plaintiff seeks “‘injunctive relief’ related to the use of excessive force,” relief from his 9 Rule Violation Report, and that defendant Turnigan “be held accountable . . . by accepting to 10 resign from his position as an correctional officer, and serve the amount of time given under the 11 crime penalty commitment.” ECF No. 1 at 3-4. He also seeks damages. 12 Liberally construed, plaintiff has stated a cognizable claim against defendant Turnigan of 13 excessive force in violation of the Eighth Amendment. See Whitley v. Albers, 475 U.S. 312, 319 14 (1986) (Eighth Amendment prohibits excessive force in the form of “unnecessary and wanton 15 infliction of pain” on a convicted prisoner). 16 C. Plaintiff’s Request for Counsel 17 Plaintiff’s request for appointment of counsel (ECF No. 9) is DENIED. The Ninth Circuit 18 has held that a district court may ask counsel to represent an indigent litigant only in “exceptional 19 circumstances,” the determination of which requires an evaluation of both (1) the likelihood of 20 success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of 21 the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 22 1991). Plaintiff appears able to present his claims adequately, and the issues are not complex, 23 therefore the request is denied without prejudice. 24 CONCLUSION 25 For the foregoing reasons, the Court orders as follows: 26 1. The Court ORDERS that service on defendant A. Turnigan, second watch 27 correctional officer at CTF Delta Wing Central Facility, shall proceed under the California 1 from prisoners in the CDCR’s custody. In accordance with the program, the Clerk is directed to 2 serve on the CDCR via email the following documents: the operative complaint (Dkt. No. 1), this 3 Order of Service, a CDCR Report of E-Service Waiver form, and a summons. The Clerk also 4 shall serve a copy of this order on the Plaintiff. 5 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 6 provide the court a completed CDCR Report of E-Service Waiver advising the court which 7 defendant(s) listed in this order will be waiving service of process without the need for service by 8 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 9 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 10 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 11 a waiver of service of process for the defendant(s) who are waiving service. 12 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 13 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 14 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 15 of this order, the summons and the operative complaint for service upon each defendant who has 16 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 17 Service Waiver. 18 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 19 requires Defendants to cooperate in saving unnecessary costs of service of the summons and 20 complaint. If service is waived, this action will proceed as if Defendants had been served on the 21 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(A)(ii), Defendants will not be 22 required to serve and file an answer before sixty (60) days from the date on which the CDCR 23 provides a copy of the CDCR Report of E-Service Waiver to the California Attorney General’s 24 Office. (This allows a longer time to respond than would be required if formal service of 25 summons is necessary.) If Defendants have not waived service and have instead been served by 26 the USMS, then Defendants shall serve and file an answer within twenty-one (21) days after 27 being served with the summons and complaint. 1 Procedure. The following briefing schedule shall govern dispositive motions in this action: 2 a. No later than sixty (60) days from the date their answer is due, defendants 3 shall file a motion for summary judgment or other dispositive motion. The motion must be 4 supported by adequate factual documentation, must conform in all respects to Federal Rule of 5 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 6 the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice 7 so that plaintiff will have fair, timely, and adequate notice of what is required of him in order to 8 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 9 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 10 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 11 However, the Court notes that under the law of the circuit, in the rare event that a failure to 12 exhaust is clear on the face of the complaint, defendants may move for dismissal under Rule 13 12(b)(6), as opposed to the previous practice of moving under an unenumerated Rule 12(b) 14 motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc) (overruling Wyatt v. 15 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held that failure to exhaust available 16 administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), 17 should be raised by a defendant as an unenumerated Rule 12(b) motion). Otherwise, if a failure to 18 exhaust is not clear on the face of the complaint, Defendants must produce evidence proving 19 failure to exhaust in a motion for summary judgment under Rule 56. Id. If undisputed evidence 20 viewed in the light most favorable to plaintiff shows a failure to exhaust, defendants are entitled to 21 summary judgment under Rule 56. Id. But if material facts are disputed, summary judgment 22 should be denied and the district judge, rather than a jury, should determine the facts in a 23 preliminary proceeding. Id. at 1168. 24 If defendants are of the opinion that this case cannot be resolved by summary judgment, 25 they shall so inform the Court prior to the date the summary judgment motion is due. All papers 26 filed with the Court shall be promptly served on plaintiff. 27 1 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 2 and served on defendants no later than twenty-eight (28) days after the date on which 3 defendants’ motion is filed. 4 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 5 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 6 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 7 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 8 any fact that would affect the result of your case, the party who asked for summary judgment is 9 entitled to judgment as a matter of law, which will end your case. When a party you are suing 10 makes a motion for summary judgment that is supported properly by declarations (or other sworn 11 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 12 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 13 as provided in Rule 56(e), that contradict the facts shown in the defendant’s declarations and 14 documents and show that there is a genuine issue of material fact for trial. If you do not submit 15 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 16 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 17 F.3d at 962-63. 18 Plaintiff also is advised that—in the rare event that defendants argue that the failure to 19 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 20 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 21 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 22 exhaust your available administrative remedies before coming to federal court. Such evidence 23 may include: (1) declarations, which are statements signed under penalty of perjury by you or 24 others who have personal knowledge of relevant matters; (2) authenticated documents— 25 documents accompanied by a declaration showing where they came from and why they are 26 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 27 in your complaint insofar as they were made under penalty of perjury and they show that you have 1 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 2 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 3 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 4 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. 5 (The notices above do not excuse defendants’ obligation to serve similar notices again 6 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 7 motions for summary judgment. Woods, 684 F.3d at 935.) 8 d. Defendants shall file a reply brief no later than fourteen (14) days after the 9 date plaintiff’s opposition is filed. 10 e. The motion shall be deemed submitted as of the date the reply brief is due. 11 No hearing will be held on the motion unless the Court so orders at a later date. 12 7. Discovery may be taken in this action in accordance with the Federal Rules of Civil 13 Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to defendants to depose 14 plaintiff and any other necessary witnesses confined in prison. 15 8. All communications by plaintiff with the Court must be served on defendants or 16 their counsel, once counsel has been designated, by mailing a true copy of the document to them. 17 9. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 18 informed of any change of address and must comply with the Court’s orders in a timely fashion. 19 Pursuant to Northern District Local Rule 3-11, a party proceeding pro se whose address changes 20 while an action is pending must promptly file a notice of change of address specifying the new 21 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 22 directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) 23 the Court fails to receive within sixty days of this return a written communication from the pro se 24 party indicating a current address. See L.R. 3-11(b). 25 10. Upon a showing of good cause, requests for a reasonable extension of time will be 26 granted provided they are filed on or before the deadline they seek to extend. 27 1 IT IS SO ORDERED. 2 Dated: October 12, 2022 3
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