Toelle v. Jusino

• Court: District Court, N.D. California
• Decided: September 28, 2023
• Docket: 4:23-cv-00194
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LOREN MICHELLE TOELLE, Case No. 23-cv-00194-JST

8 Plaintiff, ORDER OF PARTIAL SERVICE; 9 v. DISMISSING CERTAIN CLAIMS WITH LEAVE TO AMEND; DENYING 10 T. JUSINO, et al., REQUEST FOR EMERGENCY INJUNCTION; DENYING REQUESTS 11 Defendants. TO INTERVENE; GRANTING REQUESTS FOR DOCUMENTS

12 Re: ECF Nos. 2, 5, 7-9, 19, 21 13 14 Plaintiff, an inmate housed at Federal Correctional Institution – Dublin (“FCI-Dublin”), 15 has filed a pro se action. Her complaint (ECF No. 1) is now before the Court for review under 28 16 U.S.C. § 1915A. Also pending before the Court are (1) Plaintiff’s motion for emergency 17 injunctive relief, ECF Nos. 2, 5; (2) motions from third parties seeking to be added as interested 18 parties, ECF Nos. 7-9, 21; and (3) Plaintiff’s request for documents, ECF No. 19. Plaintiff has 19 paid the filing fee. ECF No. 6. 20 DISCUSSION 21 A. Standard of Review 22 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 23 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 24 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 25 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 26 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 27 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 1 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 2 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 3 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 4 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 5 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 6 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 7 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 8 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 9 B. Screening Complaint 10 1. Complaint 11 The complaint names as defendants the United States Environmental Protection Agency 12 (“EPA)”, FCI warden T. Jusino; and unknown Federal Bureau of Prison employees. The 13 complaint makes the following allegations. Starting in 2019, FCI-Dublin required inmates to dry- 14 buffed floor tiles with friable asbestos. Inmates faced disciplinary action if they failed inspection. 15 FCI Dublin facilities have toxic mold, and the air and water are contaminated by mold, asbestos, 16 and feces. FCI-Dublin’s facilities also cause Sick Building Syndrome. Due to these building 17 conditions, Plaintiff has suffered hair loss, memory loss, hearing loss, extreme fatigue, daily 18 headaches, stomachaches, muscle pain, and other medical issues associate with mold, asbestos and 19 feces contamination of the air and water. The water pipes at FCI-Dublin routinely break, leading 20 to contaminated water. FCI-Dublin inmates, including Plaintiff, were not warned that the water 21 was contaminated and therefore drank the water. As a result, Plaintiff and other inmates suffer 22 from diarrhea, headaches, and stomachaches. Inmates have been hospitalized due to the 23 contaminated water. On November 5, 2022, Plaintiff sent a letter to defendant EPA, stating that 24 FCI-Dublin is contaminated by mold, asbestos, and bird feces; that she was aware of an inmate 25 being hospitalized as a result of how the contamination affected that inmate’s medical issues. 26 Plaintiff also notified defendants Jusino and the Doe employees that FCI-Dublin is contaminated 27 by mold, asbestos, and bird feces, and that this contamination is dangerous to her health and the 1 to toxic substances, but her request was denied. Defendants see the mold, asbestos, and bird feces 2 contamination daily, and do nothing to protect Plaintiff and others. See generally ECF No. 1. 3 Plaintiff brings suit against defendant EPA pursuant to the Administrative Procedures Act, 4 5 U.S.C. § 706(1); 33 U.S.C. § 1365(a)(2); 42 U.S.C. § 7604(a); the Toxic Substance Act, 15 5 U.S.C. § 2601; and the Declaratory Judgment Act, 28 U.S.C § 2201. Plaintiff alleges that 6 defendant EPA failed to carry out their required duties as set forth in the Clean Air Act, the Clean 7 Water Act, and the Toxic Substances Control Act. Plaintiff alleges that defendant Warden Jusino 8 and the Doe FBOP employees have denied her medical treatment, including the removal from 9 dangerous and toxic substances, and failed to main suitable housing quarters, in violation of the 10 Eighth Amendment and 18 U.S.C. § 4202. ECF No. 1 at 5. 11 Plaintiff requests the following relief: a declaration that defendant EPA failed to meet their 12 statutory obligation to inspect and regulate FCI-Dublin, and that the remaining defendants violated 13 Plaintiff’s constitutional rights; order Defendants to immediately provide appropriate medical 14 treatment; monetary damages, including medical monitoring damages, compensatory damages, 15 punitive damages, fees, and costs; and any relief the Court deems appropriate. ECF No. 1 at 6. 16 2. Causes of Action 17 The complaint sets forth two causes of action. 18 In the first cause of action, Plaintiff alleges that the Clean Air Act, the Clean Water Act, 19 and the Toxic Substances Control Act impose on defendant EPA ministerial and non-discretionary 20 duties to inspect and regulate properties violate federal statutes in relation to the environment, and 21 that defendant EPA has violated these statutes by failing to comply with its duty to inspect FCI- 22 Dublin. This claim is DISMISSED with leave to amend. Plaintiff has not identified any statutory 23 provision in the Clean Air Act, the Clean Water Act, or the Toxic Substances Control Act that 24 require the EPA to inspect and regulate FCI-Dublin.1 25

26 1 Plaintiff references the following federal statutory provisions in her complaint – 5 U.S.C. § 7601(1), 33 U.S.C. § 1365(a)(2), 4 2U.S.C. 7604(a)(2), 15 U.S.C. § 2601; 28 U.S.C. § 2201 – 27 but none of these provisions require the EPA to inspect FCI-Dublin upon receiving a complaint. 1 In the second cause of action, Plaintiff alleges that defendant Jusino and Doe FBOP 2 employees subjected her to cruel and unusual punishment in violation of the Eighth Amendment, 3 18 U.S.C. § 4042, “and any other violations” when they failed to maintain suitable housing 4 quarters; failed to grant her medical treatment, including her removal from the dangerous, toxic 5 substances at FCI-Dublin; and failed to remediate the mold/asbestos/bird feces. Plaintiff alleges 6 that the air and water at FCI-Dublin is contaminated with mold, asbestos, and bird feces, causing 7 her to suffer hair loss, memory loss, hearing loss, extreme fatigue, daily headaches, stomachaches, 8 and muscle pains. Plaintiff further alleges that that she has informed defendants Jusino and Does 9 of the contamination, yet defendants Jusino and Does have done nothing to protect Plaintiff. 10 Liberally construed, the failure to remediate the mold, asbestos, and bird feces contamination of 11 FCI-Dublin’s air and water states a cognizable Eighth Amendment claim against defendant Jusino 12 for deliberate indifference to Plaintiff’s serious medical needs and safety. See, e.g., Anderson v. 13 Cty. of Kern, 45 F.3d 1310, 1314 (9th Cir.) (“[A] lack of sanitation that is severe or prolonged can 14 constitute an infliction of pain within the meaning of the Eighth Amendment.”), amended, 75 F.3d 15 448 (9th Cir. 1995); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (deliberate indifference to serious 16 medical needs violates Eighth Amendment’s proscription against cruel and unusual punishment). 17 However, Plaintiff has not stated a claim for violation of 18 U.S.C. § 4042. Section 4042 18 does not create a private right of action against federal officials in civil rights actions. Garraway 19 v. Ciufo, No. 117CV00533DADGSAPC, 2018 WL 1710032, at *3 (E.D. Cal. Apr. 9, 2018), 20 report and recommendation adopted, No. 117CV00533DADGSA, 2018 WL 3472546 (E.D. Cal. 21 July 18, 2018) (listing cases); see also Williams v. United States, 405 F.2d 951, 954 (9th Cir. 22 1969) (“[Section 4042] does not impose a duty on any officials who may be responsible to the 23 Bureau of Prisons, and does not establish a civil cause of action against anyone in the event the 24 Bureau’s duty is breached.”). 25 The Court DISMISSES Plaintiff’s claims against the Doe defendants with leave to amend. 26 The Federal Rules of Civil Procedure do not authorize or prohibit the use of fictitious parties, 27 although Rule 10 requires a plaintiff to include the names of all parties in his complaint. Fed. R. 1 impossible for the United States Marshal to serve an anonymous defendant. A plaintiff may use 2 the discovery process to obtain the names of a Doe defendant and seek leave to amend to name the 3 defendant, unless it is clear that discovery will not uncover the identities, or that the complaint will 4 be dismissed on other grounds. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) 5 (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). The Court’s general practice is to 6 dismiss Doe defendants without prejudice and, if the plaintiff is able to identify the unknown 7 defendant through discovery, allow the plaintiff leave to amend the complaint to name the 8 intended defendant. See Gillespie, 629 F.2d at 642. 9 C. Motion for Emergency Preliminary Injunctive Relief (ECF Nos. 2, 5) 10 Plaintiff has filed a request for emergency declaratory relief and emergency preliminary 11 injunctive relief, which the Court construes as a request for emergency injunctive relief. ECF 12 Nos. 2, 5. Plaintiff requests that the Court order defendant EPA to immediately inspect FCI- 13 Dublin for mold, asbestos, radon, bird feces, and any other contamination harmful to the water and 14 air. Plaintiff alleges the following. She has been in custody at FCI-Dublin since March 2019. 15 She suffers from various symptoms associated with long term exposure to mold, asbestos, and bird 16 feces, such as hearing impairment, memory loss, shortness of breath, daily headaches, fatigue, hair 17 loss, eye irritation, and a skin rash. On November 5, 2022, she notified the EPA administrator that 18 FCI-Dublin’s air and water were contaminated by mold, asbestos, and bird feces. The EPA has 19 not responded despite its non-discretionary duty to inspect properties where there are allegations 20 of violations of federal environmental statutes. 21 Plaintiff’s request for emergency injunctive relief is DENIED for failure to provide written 22 or oral notice to defendant EPA, and because the injunctive relief is unrelated to the cognizable 23 claim in the complaint. Fed. R. Civ. P. 65(b) provides that a temporary restraining order may be 24 granted without written or oral notice to the adverse party or that party’s attorney only if: (1) it 25 clearly appears from specific facts shown by affidavit or by the verified complaint that immediate 26 and irreparable injury, loss or damage will result to the applicant before the adverse party or the 27 party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies in writing the 1 notice should not be required. See Fed. R. Civ. P. 65(b). Plaintiff’s emergency preliminary 2 injunction request fails to provide reasons why notice need not be given to Defendants prior to 3 issuing an emergency preliminary injunction. In addition, a plaintiff is not entitled to an 4 injunction based on claims not pled in the complaint. Pacific Radiation Oncology, LLC v. 5 Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015). There is a sufficient nexus between the 6 claims raised in a motion for injunctive relief and the claims set forth in the underlying complaint 7 if the interim order “would grant ‘relief of the same character as that which may be granted 8 finally.’” Id. (citation omitted); see, e.g., id. at 636-38 (district court properly denied plaintiff’s 9 request for injunction to prevent HIPAA violation, where plaintiff had not asserted claim for 10 HIPAA violation). Here, the Court has dismissed with leave to amend the claim that defendant 11 EPA failed to carry out its duty to inspect FCI-Dublin. Currently, the only cognizable claim in 12 this action is the Eighth Amendment claim against defendant Jusino for deliberate indifference to 13 Plaintiff’s serious medical needs and safety. 14 For the foregoing reasons, the Court DENIES the request for an ex parte emergency 15 preliminary injunction. ECF Nos. 2, 5 16 D. Requests from Third Parties (ECF Nos. 7-9, 21) 17 Three of Plaintiff’s fellow inmates, N.T. Nocomie, Maura Martinez, and Theresa Tolliver, 18 (“Proposed Intervenors”), have filed nearly identical pleadings, titled “Motion to Be Made 19 Interested Party” or “Motion to Grant Interested Party Status.” ECF Nos. 7 and 21 (filed by N.T. 20 Nocomie); ECF No. 8 (filed by Maura Martinez); ECF No. 9 (filed by Theresa Tolliver). The Court construes these motions as requests for intervention. The Court exercises its discretion to 21 DENY intervention, finding that granting intervention would unduly delay the main action and 22 present substantial burdens to the continued administration of this litigation. Even if the 23 intervenors were properly joined, management of pro se multi-plaintiff inmate litigation presents 24 significant burdens to both the parties and the Court. During the prosecution of this action, each 25 intervenor would be required to sign and submit his own motions and notices related to his claims 26 in the action, and all intervenors would be required to individually sign any motion or notice filed 27 on behalf of all intervenors. Neither Plaintiff nor any other inmate may represent other inmates. 1 Furthermore, because of security concerns related to inmate correspondence and face-to-face 2 communications, intervenors would have, at best, very limited opportunities to discuss case 3 strategy, share discovery, or even provide each other copies of the motions and notices they file 4 with the Court. Given these circumstances, the Court finds that any additional burden posed to intervenors by the denial of intervention is minimal, and that the Plaintiff’s interest in timely 5 resolution of her claims is served by denial of intervention. If any of the Proposed Intervenors 6 seeks judicial review of the conditions of her confinement at FCI-Dublin, she may file her own 7 lawsuit. 8 To the extent that the Proposed Intervenors are seeking to join this action pursuant to either 9 Fed. R. Civ. P. 19 (required joinder) or Fed. R. Civ. P. 20 (permissive joinder), the request for 10 joinder is DENIED.2 11 Required joinder pursuant to Rule 19 is not appropriate here. Rule 19(a) requires joinder 12 of a party who is subject to service of process and will not deprive the court of subject-matter 13 jurisdiction, if: (A) the party’s absence will prevent the court from according complete relief 14 among the existing parties; or (B) that person claims an interest relating to the case and their 15 absence may (i) “impair or impede” their ability to protect that interest; or (ii) pose a “substantial 16 risk” of incurring double, multiple or inconsistent obligations upon that party. Fed. R. Civ. P. 17 19(a)(1). A “crucial premise” of mandatory joinder is that the absent party possess an interest in 18 the pending litigation that is “legally protected.” Cachil Dehe Band v. California, 536 F.3d 1034, 19 1041 (9th Cir. 2008) (citation omitted). The Proposed Intervenors’ absence from this case does 20 not prevent the Court from affording complete relief to the existing parties. This action is specific 21 to how Plaintiff’s health is impacted by the conditions at FCI-Dublin. While the Proposed 22 Intervenors have an interest in this case in that it concerns the conditions of the institution to 23 which they are confined, this general interest alone is insufficient to require joinder. The fact that 24 25 2 It may be more appropriate to consider these motions as requests for joinder than for 26 intervention. Intervention is a procedure in which a nonparty to a lawsuit can gain party status without the consent of the original parties. United States ex rel. Eisenstein v. City of New York, 27 556 U.S. 928, 933 (2009) (citing Marino v. Ortiz, 484 U.S. 301, 304 (1988)). Here, it appears that 1 the Proposed Intervenors also allege that their health has been negatively affected by alleged 2 asbestos, mold, and bird feces contamination of the water and air at FCI-Dublin, the similarity of 3 their claims does not require their joinder in this case because the absence of the Proposed 4 Intervenors from this action does not impair their ability to protect that interest or their absence 5 does not pose a substantial risk of incurring double, multiple, or inconsistent obligations upon 6 them. If Plaintiff were unable to obtain relief in this action, this would not necessarily preclude 7 the Proposed Intervenors from obtaining relief if they bring their own actions regarding health 8 issues caused by mold and asbestos contamination. 9 Permissive joinder pursuant to Rule 20 is also not appropriate here. Fed. R. Civ. P. 20 10 allows for permissive joinder as plaintiffs if (1) the relief asserted by each potential plaintiff arises 11 out of or relate to the same transaction or occurrence, or series of transactions or occurrences; and 12 (2) a question of law or fact common to all plaintiffs will arise in the action. Fed. R. Civ. P. 13 20(a)(1); Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). Mere similarity in the claims 14 brought by plaintiffs is not enough to satisfy Rule 20(a)(1). See, e.g., id. at 1350-51 (district 15 court’s order severing plaintiffs not abuse of discretion where plaintiff’s allegations of delay by 16 INS varied from case to case, plaintiffs did not allege that their claims arose out of a systematic 17 pattern of events, and each claim was discrete and would have required individualized attention). 18 Even when the requirements for permissive joinder under Rule 20(a) are met, a district court must 19 examine whether joinder would comport with principles of fundamental fairness or would result in 20 prejudice to either side. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000). 21 Assuming arguendo that the Proposed Intervenors have met the technical requirements for 22 permissive joinder under Rule 20(a), the Court finds that joinder is not appropriate here and 23 exercises its discretion to deny joinder under Rule 20. Whether the conditions at FCI-Dublin 24 violate the Eighth Amendment will depend in part on the individual health conditions of each 25 potential plaintiff. Allowing the Proposed Intervenors to join as plaintiffs would multiply the 26 disputed factual issues and would prejudice Defendant by complicating the presentation of 27 evidence. Further, as discussed above, pro se inmate litigants face distinct logistical hurdles to 1 E. Filing Evidence in the Record (ECF Nos. 10-18, 20, 22) 2 Plaintiff has filed nearly identical declarations from fifteen inmates. ECF Nos. 10-18, 20.3 3 These declarations state that (1) during the pandemic, inmates were denied access to the grievance 4 system; and (2) during their time at FCI-Dublin, they suffered from respiratory illness, runny nose, 5 coughing, headaches, and stomach pains; that the air and water is bad; that they were not given prior notice regarding the contamination of the air and water; and that buffing is required to pass 6 inspection. Plaintiff has also filed with the Court a letter from Federal Bureau of Prisons Western 7 Regional Counsel denying her administrative claim No. TRT-WXR- 2023-02298, regarding 8 events that occurred on January 4, 2023, at FCI-Dublin. ECF No. 22. 9 Pleadings requesting court action are appropriately filed with the Court. However, 10 Plaintiff should not file evidence with the Court. The Court is not a depository for Plaintiff’s 11 prematurely filed evidence. Evidence filed prematurely with the Court, such as ECF Nos. 10-18, 12 20, 22 have no legal effect and will not be considered. To the extent Plaintiff has collected 13 evidence that she believes supports her claims, the appropriate time to present evidence is when 14 filing or opposing a dispositive motion. In the future, Plaintiff should only file pleadings in this 15 action if she is requesting court action, such as an extension of a deadline. Plaintiff should refrain 16 from filing evidence with the Court as she collect it and refrain from filing declarations reporting 17 allegedly unconstitutional action. 18 F. Request for Documents (ECF No. 19) 19 As a one-time courtesy, the Court GRANTS Plaintiff’s for courtesy copies of ECF Nos. 1- 20 14. ECF No. 19. Plaintiff will be provided with courtesy copies of these documents under 21 separate cover. 22 / / / 23 24 3 ECF No. 10 (Declaration of Salacia Tinsley); ECF No. 11 (Declaration of Conleysa Gaston); 25 ECF No. 12-1 (Declaration of Makasini Lomu); ECF No. 12-1 (Declaration of Misty Morales); ECF No. 12-3 (Declaration of Nadia Carolina Avalos); ECF No. 12-4 (Declaration of September 26 Grupp); ECF No. 13 (Declaration of Lee Elbaz); ECF No. 13-1 (Declaration of Veronica Lebya); ECF No. 13-2 (Declaration of Yvonne Fonesca); ECF No. 14 (Declaration of Leanne Zamora); 27 ECF No. 15 (Declaration of Elizabeth Wylie); ECF No. 16 (Declaration of Katherine Sparks); 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows. 3 1. The Court finds that the complaint states a cognizable Eighth Amendment claim 4 against defendants FCI-Dublin warden Jusino. The Court DISMISSES the remainder of the 5 complaint and the remaining defendants with leave to amend. 6 2. The Court DENIES the request for an ex parte emergency preliminary injunction. 7 ECF Nos. 2, 5. 8 3. The Court DENIES the requests to intervene filed by N.T. Nocomie, Maura 9 Martinez, and Theresa Tolliver without prejudice to these individuals raising their claims in 10 separate actions. ECF Nos. 7, 8, 9, 21. 11 4. As a one-time courtesy, the Court GRANTS Plaintiff’s request for documents. 12 ECF No. 19. 13 5. If Plaintiff wishes to file an amended complaint to address the deficiencies 14 identified above, Plaintiff shall, within twenty-eight (28) days of the date of this order, Plaintiff 15 shall file an amended complaint that addresses the identified deficiencies. The amended complaint 16 must include the caption and civil case number used in this order, Case No. C 23-00194 JST (PR) 17 and the words “AMENDED COMPLAINT” on the first page. If using the court form complaint, 18 Plaintiff must answer all the questions on the form in order for the action to proceed. An amended 19 complaint completely replaces the previous complaints. See Lacey v. Maricopa Cnty., 693 F.3d 20 896, 925 (9th Cir. 2012). Accordingly, Plaintiff must include in his amended complaint all the 21 claims she wishes to present, including the claim found cognizable above, and all of the 22 defendants she wishes to sue, including the defendant ordered served below, and may not 23 incorporate material from the prior complaints by reference. Failure to file an amended complaint 24 in accordance with this order in the time provided will result in dismissal of this action without 25 further notice to Plaintiff. The Clerk shall include two copies of the court’s complaint form with a 26 copy of this order to Plaintiff. 27 6. The Clerk shall issue summons and the United States Marshal shall serve, without 1 of this order upon defendant Warden Jusino at Federal Correctional Institution – Dublin, 5701 8th 2 Street, Unit F, Dublin, CA 94568. A courtesy copy of the complaint with attachments and this 3 order shall also be mailed to the United States Attorney’s Office for the Northern District of 4 California. 5 7. 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 her 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).4 14 b. Plaintiff’s opposition to the summary judgment or other dispositive motion 15 must be filed with the Court and served upon Defendants 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 she prepares her 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 8. 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 4 If Defendant asserts that Plaintiff failed to exhaust her 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 defendants’ 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 9. 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 17 Defendans, but once Defendant is represented by counsel, all documents must be mailed to 18 counsel rather than directly to Defendant. 19 10. 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 11. 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 she is moved to a new facility. 27 12. Any motion for an extension of time must be filed no later than the deadline sought 1 she must include the case name and case number for this case on any document she submits to the 2 Court for consideration in this case. 3 This order terminates ECF Nos. 2, 5, 7, 8, 9, 19, 21. 4 IT IS SO ORDERED.

5 Dated: September 28, 2023 6 JON S. TIGA 7 nited States District Judge 8 9 10 11 12

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