1 2 3 6 EMMANUEL DONTEZE WILLIAMS, 7 Case No. 19-cv-06882-YGR (PR) Plaintiff, v. 9 Z. AUSTEN, 10 Defendant. 11
13 Plaintiff, a state prisoner, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, 14 stemming from a June 7, 2018 incident at Pelican Bay State Prison (“PBSP”), where he is still 15 currently housed. He alleges that Defendant PBSP Correctional Officer Z. Austen used excessive 16 force against him. Plaintiff seeks compensatory and punitive damages. 17 Plaintiff has filed a motion for leave to proceed in forma pauperis, which will be granted in 18 a separate written Order. 19 Venue is proper because the events giving rise to the claim are alleged to have occurred at 20 PBSP which is located in this judicial district. See 28 U.S.C. § 1391(b). 22 A. Standard of Review 23 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 24 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 26 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 27 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 1 Cir. 1988). 2 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 3 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 4 the alleged violation was committed by a person acting under the color of state law. West v. 5 Atkins, 487 U.S. 42, 48 (1988). 6 B. Excessive Force Claim 7 A prisoner has the right to be free from cruel and unusual punishment, including physical 8 abuse by guards. Whenever prison officials stand accused of using excessive physical force in 9 violation of the Eighth Amendment, the core judicial inquiry is whether force was applied in a 10 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. 11 Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citing Whitley v. Albers, 475 U.S. 312, 317 (1986)). 12 Plaintiff alleges that on June 7, 2018, he was subjected to excessive force by Defendant. 13 Dkt. 1 at 3. Specifically, Plaintiff alleges that on the date of the incident Defendant “used 14 excessive force that was unnecessary for there was no immine[n]t threat observed by 15 [Defendant].” Id. Plaintiff adds that “given the circumstances there was no clear reason as to why 16 [Defendant] fired his 40 mm[.] launcher.” Id. Furthermore, Plaintiff claims that Defendant “never 17 stated in [his] incident report [that] he observed behavior that may have le[]d to [serious bodily 18 injury], or [great bodily injury] to another.” Id. Finally, Plaintiff claims that he lost a tooth during 19 this altercation. Id. 20 Liberally construed, Plaintiff’s complaint states a cognizable Eighth Amendment claim 21 against Defendant. 23 For the foregoing reasons, the Court orders as follows: 24 1. Plaintiff states a cognizable Eighth Amendment claim for the use of excessive force 25 against Defendant. 26 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 27 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 1 Officer Z. Austen. The Clerk shall also mail a copy of the complaint and a copy of this Order to 2 State Attorney General’s Office in San Francisco. Additionally, the Clerk shall mail a copy of this 3 Order to Plaintiff. 4 3. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires 5 Defendant to cooperate in saving unnecessary costs of service of the summons and complaint. 6 Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the Court, on 7 behalf of Plaintiff, to waive service of the summons, fail to do so, Defendant will be required to 8 bear the cost of such service unless good cause be shown for the failure to sign and return the 9 waiver form. If service is waived, this action will proceed as if Defendant had been served on the 10 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be 11 required to serve and file an answer before sixty (60) days from the date on which the request for 12 waiver was sent. (This allows a longer time to respond than would be required if formal service of 13 summons is necessary.) Defendant is asked to read the statement set forth at the foot of the waiver 14 form that more completely describes the duties of the parties with regard to waiver of service of 15 the summons. If service is waived after the date provided in the Notice but before Defendant has 16 been personally served, the Answer shall be due sixty (60) days from the date on which the 17 request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever 18 is later. 19 4. Defendant shall answer the complaint in accordance with the Federal Rules of Civil 20 Procedure. The following briefing schedule shall govern dispositive motions in this action: 21 a. No later than sixty (60) days from the date their answer is due, Defendant 22 shall file a motion for summary judgment or other dispositive motion. The motion must be 23 supported by adequate factual documentation, must conform in all respects to Federal Rule of 24 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 25 the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice 26 so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to 27 1 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 2 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 3 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 4 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 5 exhaust is clear on the face of the complaint, Defendant may move for dismissal under Rule 6 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 7 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108, 8 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under 9 the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an 10 unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on the face of the 11 complaint, Defendant must produce evidence proving failure to exhaust in a motion for summary 12 judgment under Rule 56. Id.
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1 2 3 6 EMMANUEL DONTEZE WILLIAMS, 7 Case No. 19-cv-06882-YGR (PR) Plaintiff, v. 9 Z. AUSTEN, 10 Defendant. 11
13 Plaintiff, a state prisoner, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, 14 stemming from a June 7, 2018 incident at Pelican Bay State Prison (“PBSP”), where he is still 15 currently housed. He alleges that Defendant PBSP Correctional Officer Z. Austen used excessive 16 force against him. Plaintiff seeks compensatory and punitive damages. 17 Plaintiff has filed a motion for leave to proceed in forma pauperis, which will be granted in 18 a separate written Order. 19 Venue is proper because the events giving rise to the claim are alleged to have occurred at 20 PBSP which is located in this judicial district. See 28 U.S.C. § 1391(b). 22 A. Standard of Review 23 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 24 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 26 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 27 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se 1 Cir. 1988). 2 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 3 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 4 the alleged violation was committed by a person acting under the color of state law. West v. 5 Atkins, 487 U.S. 42, 48 (1988). 6 B. Excessive Force Claim 7 A prisoner has the right to be free from cruel and unusual punishment, including physical 8 abuse by guards. Whenever prison officials stand accused of using excessive physical force in 9 violation of the Eighth Amendment, the core judicial inquiry is whether force was applied in a 10 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. 11 Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citing Whitley v. Albers, 475 U.S. 312, 317 (1986)). 12 Plaintiff alleges that on June 7, 2018, he was subjected to excessive force by Defendant. 13 Dkt. 1 at 3. Specifically, Plaintiff alleges that on the date of the incident Defendant “used 14 excessive force that was unnecessary for there was no immine[n]t threat observed by 15 [Defendant].” Id. Plaintiff adds that “given the circumstances there was no clear reason as to why 16 [Defendant] fired his 40 mm[.] launcher.” Id. Furthermore, Plaintiff claims that Defendant “never 17 stated in [his] incident report [that] he observed behavior that may have le[]d to [serious bodily 18 injury], or [great bodily injury] to another.” Id. Finally, Plaintiff claims that he lost a tooth during 19 this altercation. Id. 20 Liberally construed, Plaintiff’s complaint states a cognizable Eighth Amendment claim 21 against Defendant. 23 For the foregoing reasons, the Court orders as follows: 24 1. Plaintiff states a cognizable Eighth Amendment claim for the use of excessive force 25 against Defendant. 26 2. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of 27 Service of Summons, two copies of the Waiver of Service of Summons, a copy of the complaint 1 Officer Z. Austen. The Clerk shall also mail a copy of the complaint and a copy of this Order to 2 State Attorney General’s Office in San Francisco. Additionally, the Clerk shall mail a copy of this 3 Order to Plaintiff. 4 3. Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure requires 5 Defendant to cooperate in saving unnecessary costs of service of the summons and complaint. 6 Pursuant to Rule 4, if Defendant, after being notified of this action and asked by the Court, on 7 behalf of Plaintiff, to waive service of the summons, fail to do so, Defendant will be required to 8 bear the cost of such service unless good cause be shown for the failure to sign and return the 9 waiver form. If service is waived, this action will proceed as if Defendant had been served on the 10 date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendant will not be 11 required to serve and file an answer before sixty (60) days from the date on which the request for 12 waiver was sent. (This allows a longer time to respond than would be required if formal service of 13 summons is necessary.) Defendant is asked to read the statement set forth at the foot of the waiver 14 form that more completely describes the duties of the parties with regard to waiver of service of 15 the summons. If service is waived after the date provided in the Notice but before Defendant has 16 been personally served, the Answer shall be due sixty (60) days from the date on which the 17 request for waiver was sent or twenty (20) days from the date the waiver form is filed, whichever 18 is later. 19 4. Defendant shall answer the complaint in accordance with the Federal Rules of Civil 20 Procedure. The following briefing schedule shall govern dispositive motions in this action: 21 a. No later than sixty (60) days from the date their answer is due, Defendant 22 shall file a motion for summary judgment or other dispositive motion. The motion must be 23 supported by adequate factual documentation, must conform in all respects to Federal Rule of 24 Civil Procedure 56, and must include as exhibits all records and incident reports stemming from 25 the events at issue. A motion for summary judgment also must be accompanied by a Rand1 notice 26 so that Plaintiff will have fair, timely and adequate notice of what is required of him in order to 27 1 oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice requirement set out 2 in Rand must be served concurrently with motion for summary judgment). A motion to dismiss 3 for failure to exhaust available administrative remedies must be accompanied by a similar notice. 4 However, the Court notes that under the new law of the circuit, in the rare event that a failure to 5 exhaust is clear on the face of the complaint, Defendant may move for dismissal under Rule 6 12(b)(6) as opposed to the previous practice of moving under an unenumerated Rule 12(b) motion. 7 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (overruling Wyatt v. Terhune, 315 F.3d 1108, 8 1119 (9th Cir. 2003), which held that failure to exhaust available administrative remedies under 9 the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), should be raised by a defendant as an 10 unenumerated Rule 12(b) motion). Otherwise if a failure to exhaust is not clear on the face of the 11 complaint, Defendant must produce evidence proving failure to exhaust in a motion for summary 12 judgment under Rule 56. Id. If undisputed evidence viewed in the light most favorable to 13 Plaintiff shows a failure to exhaust, Defendant is entitled to summary judgment under Rule 56. Id. 14 But if material facts are disputed, summary judgment should be denied and the district judge 15 rather than a jury should determine the facts in a preliminary proceeding. Id. at 1168. 16 If Defendant is of the opinion that this case cannot be resolved by summary judgment, 17 Defendant shall so inform the Court prior to the date the summary judgment motion is due. All 18 papers filed with the Court shall be promptly served on Plaintiff. 19 b. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 20 and served on Defendant no later than twenty-eight (28) days after the date on which Defendant’s 21 motion is filed. 22 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 23 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 24 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 25 be granted when there is no genuine issue of material fact—that is, if there is no real dispute about 26 any fact that would affect the result of your case, the party who asked for summary judgment is 27 entitled to judgment as a matter of law, which will end your case. When a party you are suing 1 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 2 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 3 as provided in Rule 56(c), that contradicts the facts shown in the defendant’s declarations and 4 documents and show that there is a genuine issue of material fact for trial. If you do not submit 5 your own evidence in opposition, summary judgment, if appropriate, may be entered against you. 6 If summary judgment is granted, your case will be dismissed and there will be no trial. Rand, 154 7 F.3d at 962-63. 8 Plaintiff also is advised that—in the rare event that Defendant argues that the failure to 9 exhaust is clear on the face of the complaint—a motion to dismiss for failure to exhaust available 10 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 11 prejudice. To avoid dismissal, you have the right to present any evidence to show that you did 12 exhaust your available administrative remedies before coming to federal court. Such evidence 13 may include: (1) declarations, which are statements signed under penalty of perjury by you or 14 others who have personal knowledge of relevant matters; (2) authenticated documents— 15 documents accompanied by a declaration showing where they came from and why they are 16 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 17 in your complaint insofar as they were made under penalty of perjury and they show that you have 18 personal knowledge of the matters state therein. As mentioned above, in considering a motion to 19 dismiss for failure to exhaust under Rule 12(b)(6) or failure to exhaust in a summary judgment 20 motion under Rule 56, the district judge may hold a preliminary proceeding and decide disputed 21 issues of fact with regard to this portion of the case. Albino, 747 F.3d at 1168. 22 (The notices above do not excuse Defendant’s obligation to serve similar notices again 23 concurrently with motions to dismiss for failure to exhaust available administrative remedies and 24 motions for summary judgment. Woods, 684 F.3d at 935.) 25 d. Defendant shall file a reply brief no later than fourteen (14) days after the 26 date Plaintiff’s opposition is filed. 27 e. The motion shall be deemed submitted as of the date the reply brief is due. 1 5. Discovery may be taken in this action in accordance with the Federal Rules of Civil 2 || Procedure. Leave of the Court pursuant to Rule 30(a)(2) is hereby granted to Defendant to depose 3 Plaintiff and any other necessary witnesses confined in prison. 4 6. All communications by Plaintiff with the Court must be served on Defendant or 5 || Defendant’s counsel, once counsel has been designated, by mailing a true copy of the document to 6 || them. 7 7. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 8 || informed of any change of address and must comply with the Court’s orders in a timely fashion. 9 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes 10 || while an action is pending must promptly file a notice of change of address specifying the new 11 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail 12 || directed to the pro se party by the Court has been returned to the Court as not deliverable, and 13 (2) the Court fails to receive within sixty days of this return a written communication from the pro 14 || se party indicating a current address. See L.R. 3-11(b). 15 8. Upon a showing of good cause, requests for a reasonable extension of time will be a 16 || granted provided they are filed on or before the deadline they seek to extend. IT IS SO ORDERED. 18 || Dated: May 1, 2020 Lapse Haptifflecs,— 19 NNE GONZ EZ ROGERS United States District Judge 20 21 22 23 24 25 26 27 28